Who are contracts for? If they only need to be read by lawyers then perhaps as a society we are doing fine. If not, then we are going to have to open this up and plenty may need to change.
Why Ask the Question?
It seems like an innocent question, but it’s one that goes to a nexus of issues related to the work of lawyers. But why ask it in the first place?
It was triggered by the huge response to an article on Friday by Artificial Lawyer (AL) about how scientists had shown that contracts were hard to read, not because they contained overly complex ideas, but because legalese with its jargon and hard to fathom writing style made the documents impenetrable to most people. At time of going to press, that article had received 434 likes on LinkedIn and 72 comments, the vast majority of which were positive and in support of change. Articles on this site about legal drafting don’t usually get that level of engagement. Clearly this has resonated.
The majority of readers appear to have responded, to put it generally, by saying: ‘Yes, legal writing is too obscure to understand for most people, let’s see if we can change things for the better.’
However, there were also two distinct negative reactions, one perhaps predictable, the other quite baffling. The first went like this: ‘Scientists say we write badly? How dare they!? I read their paper and it’s also hard to understand and is also full of jargon and strange sentences. What hypocrisy! This just shows we have no need to change anything.’
It was this type of response that ultimately triggered the question: ‘Who are contracts for?’ Because, if contracts are like a niche scientific paper, written only for peer review by a few dozen other scientists, then this debate is over already and the answer is that contracts are just for lawyers and that’s all there is to it.
But…neither this site, nor many others, believe that is the case – but more on that shortly.
The other negative response was really surprising and went like this: ‘Legal writing is hard to understand? No surprise there, and what of it? This is how it’s always been and always will be. This study has no value at all.’
First, usually when someone mentions there’s a problem it’s unusual to say: ‘I know, but we don’t care.’ The other aspect it misses is the central point of the study, which was not to ‘bash lawyers’, but to show objectively that people can understand the ideas contained in a contract, it’s just that legalese obscures things to the point they cannot decipher the meaning. I.e. the scientific paper’s key point was that contracts could be understood by a wider audience, if only they were written differently.
The fact that this point was completely missed by several people suggests there is plenty of complacency in the profession.
Back to the Question: Who Are Contracts For?
You may say that a Master Services Agreement between a large corporate and an equally large supplier company is not something that needs to be read or understood easily by the public at large. That may be true. But, presumably other parts of the companies making that agreement probably do need to understand it, not just the lawyers?
If an employee signs an NDA, it also presumably would be ‘a good idea’ if they could actually understand what they had just committed themselves to and how they need to conduct themselves.
And what about the customers? Should they be able to understand the massive agreements pinned onto the end of websites? You could argue that they don’t, as no-one reads them. But if that’s the case, then what are we doing? Company A pays law firm B to draft a document that needs a click online for a customer to proceed with a transaction, but the customer never reads it as the document is too long, too strangely written, too filled with jargon, and so just clicks it and the company makes a sale without one of the key parties (the customer) having a clue what they’ve just agreed to.
Perhaps the company’s lawyers then would say: ‘Well, you’re daft if you just click ‘I agree’, and it’s your fault if something goes wrong and you don’t know what you’ve agreed to.’ Others may say that this is really not a great way for a modern society to operate. I.e. if the knowledge and the facts of an agreement are ‘owned’ by one party and the other has none, or very little of the picture, then is that equitable?
And what about other contractual areas that really do impact everyone at some point? Mortgage and rental agreements? Employment contracts? Care home agreements for the elderly? Agreements with utility companies for what and how they can charge us for our heating?
This site would argue – and no doubt many others in the legal design world would too – that in fact contracts are rarely just for the use of lawyers. And even if they are only read by lawyers (at present) that may not be an indicator that people would not like to know what they are agreeing to or what their legal rights are under that agreement.
Raising a problem without offering any hint of a solution isn’t that helpful. So here goes. Here are a few ideas (and please improve on these) that this site can come up with.
- That all contracts contain an easy-to-read summary, which contains key facts, key areas where you (as an individual or a corporate) are forming a lasting agreement and what it means, and any data, e.g. payments and dates is also included in a clear way. (Ensuring that those summaries are easily machine readable would be great as well.)
- That contracts have a ‘nested’ writing system, especially if online, where the key terms are written in summarised form, and you can then click in and go deeper and deeper into the details. I.e. you have layers of complexity, a bit like a Wikipedia page, where the key points are in a paragraph or two, then there are subheadings, which also begin clearly, and then if you want more detail you can dig in. This would be different to the ‘complex from the first word’ approach that some contracts take, which are then just a long ‘shopping list’ of issues and potential issues that quickly lose the lay readers’ attention. I.e. documents in ‘three dimensions’, not just two.
- That the legal design world puts as much focus onto writing style as it does into visual appearance, (which it may do already…?). Visual changes can help, but if the syntax of the document is still dense and hard to follow, it will make little lasting difference.
- That law schools teach the importance of clear drafting, not in relation to past examples of legalese, but via new examples of a more direct writing style from the wider world. (Try John Grisham if you want to remain in the legal sphere and pick up some tips on clear prose.)
- That Bar and regulatory organisations start to get engaged with this issue and encourage lawyers to communicate in contracts in such a way that clients can understand what they are signing. After all, regulators are all about protecting the clients…
Are there cases where lawyers will really be the only ones to ever see a certain document? Yes, no doubt. There will certainly be documents where a lawyer will likely be the only type of person to draft, read and retain that document. In such scenarios one can see why lawyers – as with scientists and their scientific papers written expressly for other scientists in their field – would object to the idea they need to change how they draft. And for such documents they may well be right.
We would not expect a quantum physicist to put into standard English a set of formulae so intricate that the meaning could not be expressed in any other way. But, we would expect, for example, a government scientific adviser to be able to explain in very clear terms the risks involved in building a new nuclear power station, while still making intelligible reference to the scientific issues involved.
And this is the point: if a legal instrument, e.g. a contract, is going to need at some point to be understood by the wider world, then it seems reasonable to ask that it is written in a way that the wider world can understand.
That ‘wider world’ may be the CFO or head of HR at a company, it may be an employee who has signed an NDA, or it could be you or I who has just signed a mortgage document, but surely contracts that are read by everyone should be understandable ‘by everyone’?
By Richard Tromans, Founder, Artificial Lawyer, Sept 2022