For Whom Should Lawyers Write?

Combine the concerns of a Harvard Law grad with the tech savvy of MIT and what do you get?

Legal documents, such as contracts or deeds, are notoriously difficult for nonlawyers to understand. A new study from MIT cognitive scientists has determined just why these documents are often so impenetrable.

After analyzing thousands of legal contracts and comparing them to other types of texts, the researchers found that lawyers have a habit of frequently inserting long definitions in the middle of sentences. Linguists have previously demonstrated that this type of structure, known as “center-embedding,” makes text much more difficult to understand.

And that’s not all.

While center-embedding had the most significant effect on comprehension difficulty, the MIT study found that the use of unnecessary jargon also contributes.

And there is likely no lawyer or judge who would dispute any of this. But then, so what?

“Making legal language more straightforward would help people understand their rights and obligations better, and therefore be less susceptible to being unnecessarily punished or not being able to benefit from their entitled rights,” says Eric Martinez, a recent law school graduate and licensed attorney who is now a graduate student in brain and cognitive sciences at MIT.

Martinez’s point, that non-lawyers can’t under legal writing seems too obvious to require discussion, but then, legal writing isn’t intended for the benefit of non-lawyers. Granted, it means that people can’t discern what benefits they get and what detriments they give, which means that in a great many instances, people lack the capacity to enter into contracts or consent to terms and conditions because they cannot “knowingly, voluntarily and intelligently” do so. If you can’t understand what you’re signing, then you can’t agree to it.

But legal writing was never intended to inform people as to their rights, whether those they enjoy or those they’re giving away. Rather, it’s meant for the court that will subsequently rule upon those rights should a dispute arise. It’s intended to cover contingencies, and crafted for the specific purpose of leaving as little to doubt as possible. Center-embedding is a linguistic nightmare, but a legal necessity if you want to win in court. How else can you point at the center-embedded definition and exclaim in your best stentorian voice, “See judge! See! It says so right there!!!”

Martinez is following in the shoes of Bryan Garner, who has long argued that legal writing should reject its formalities, its jargon, its reliance on traditional phrases, in favor of normal language that’s easily understood. The problem is that we have centuries of caselaw holding that certain phrases have definite meanings, such as “time of the essence.”

It’s use is clear to every lawyer and judge, even if its a peculiar phrase at best. If what you’re trying to accomplish is avail yourself of the concept, then these are the words you use, whether they’re formalistic jargon or not. If you fail to do so, not only will you walk into court with a lousy legal position, but you’ve needless undercut your client’s interest as the judge asks, “if you meant ‘time of the essence,’ why didn’t you say ‘time of the essence’?”

Eschewing these centuries of caselaw providing clear and definitive meaning to awkward or incomprehensible legal jargon not only puts your case, and hence your client, at risk, but would turn litigation into a never-ending battle of reinventing the wheel. We know what a well-worn, trite, traditional phrase means, even if it’s incoherent to non-lawyers. By trying to rephrase it in a way that makes it more comprehensible to non-lawyers, we expose the phrase to being interpreted in ways that were never intended. Maybe we win. Maybe not. Does your client really want to take that chance when there is no reason to do so, other than to avoid using legal jargon?

But why, you ask, can’t we do both? What about a paragraph of legal jargon followed by a “plain English” explanation of what it means? To lawyers, this create the potential, if not the likelihood, of ambiguity. The legal paragraph might say one thing, but that could be  altered, modified or contradicted by the plain English explanation, which would likely be held to be the language upon which the non-lawyer relied when entering into the agreement. A rule of interpretation is that ambiguity in a writing is construed against the drafter, since it’s the drafter who had the ability to make the words sufficiently clear to eliminate the ambiguity.

The appeal of efforts such as those offered by Martinez with the analytical juice of MIT is obvious. Who doesn’t want legal writing to be far more comprehensible so that we know what we’re getting into? Who doesn’t want to be able to read a contract and, without having to pay for a lawyer to explain it to you, understand the words? Everybody does.

But at the same time, who wants to lose in court when a dispute arises and the judge is left to figure out what, exactly, some plain language means when there was well-defined language available that would have left no doubt as to who wins and loses? Nobody.