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 understand 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 it’s 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 needlessly 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.
“time of the essence” or “time is of the essence”?
It depends.
Thanks for the clarification!
“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.
People will understand better? What kind of dictiontery do I use to define “entitled rights?”
Getting advice on legal writing from a new law graduate is like getting advice on time travel from me. I’ve done it a few times, but only when very drunk. It’s hard to remember how it really works, so I make most of it up.
He went to Harvard, Skink. HARVARD.
Thanks for bringing your extensive experience to bear here Skink. I wanted to say that the kid should practice a bit to find out why that language is all necessary, but then I touched behind my ears and still felt moisture, so I didn’t want to stick my neck out.
It’s an application of Chesterton’s Fence. He can’t see why “time is of the essence” was settled on or the value in settling on one phrase over any other, so he feels ok removing it. Disaster would follow.
If it was just one recent Harvard grad, it wouldn’t be worthy of mention. The problem is that this has been pushed for a while by Garner, no kid he, and has gained rather broad acceptance by younger lawyers who are of the belief that legal mumbo jumbo is just us olds grasping onto tradition.
To some extent, there’s merit in the argument when it comes to some of the pointless routine language (“Further, your affiant sayeth naught”), but much of it has both good reason and a long history of meaning that shouldn’t be ignored. Chesterton’s Fence is right, but few baby lawyers want to put in the effort to figure out why seemingly arcane language is used when they can just snark their way past it.
“Getting advice on legal writing from a new law graduate is like getting advice on time travel from me. I’ve done it a few times, but only when very drunk. It’s hard to remember how it really works, so I make most of it up.”
Stealing this.
Tummy rubs, Hal? Are we doing that here now?
Terms of Art. Every profession has them and doesn’t want the proletariat to know what they mean because it would lessen their power.
How long before Martinez is drummed out of the trade?
HG, I generally like your comments but this one is off base. I’m a retired cop and a private pilot. Both activities are rife with shorthand words and phrases that are used to compress and convey a great deal of specific information in a way that is understandable over voice radio sets of the 1930’s. Hence such tools as phonetic alphabets.
Granted, computer technology has made that criteria less important, but the shorthand remains because it still serves a purpose and because, in the case of aviation, it makes we pilots feel like miniature Chuck Yeagers when we get it right. “Power” over someone else has nothing to do with it. Try arguing routing with a departure controller at LAX in perfect aviation speak and see how far it gets you.
HG can be a bit cynical about the guild and our secret language designed to keep him in the dark.
Everyone has terms of art. In mining, reserves and resources don’t mean what you think they do. That’s one of our secrets, along with the special handshake.
This provides an interesting contrast with your post from 10 years ago about the death of the handshake deal (Without Pics, It Never Happened). If the contract is written not for the benefit of the parties, but for the benefit of the court that later may have to rule against one of the parties, then why (so the reasoning likely goes) should an oral contract secured with a handshake be the same? If that contract is entirely for the benefit of the parties, why should it be enforceable in court?
Also, unfortunately, this is a self-reinforcing phenomenon. The more people rely on legal jargon to secure contracts, the more other people have to do the same or risk losing in court. Therefore the amount of legal writing in contracts is only going to increase (since decreasing it has (potential) costs but increasing it does not). Clickwrap is (in my opinion) the worst example of this, since it doesn’t even require someone to carry it (which would at least provide some form of limitation on size). At some point a court is going to rule against clickwrap, and if they’re not careful it may affect other contracts as well; what happens if this entire edifice comes crashing down is beyond my imagination.
I don’t think you got the point. But for disputes, we wouldn’t need any writings. Honorable people honor their contracts. A handshake would be sufficient, and this is a good thing as we should all be honorable and we should all honor our agreements.
Written contracts are for the benefit of someone who wasn’t there when hands shook.
Ironically, contracts tend to have the least jargon of any legal document, and a good contract will additionally have a definitions section, just in case an important word turns out to be jargon.
This is doubly so for insurance contracts, which have stricter legal requirements to use plain language (albeit varying by state).
Proving handshake deals and enforcing clickwrap contracts are two unrelated issues.
Given the trend over the past few years of taking commonly understood words and redefining them to mean something completely different and unanticipated, putting legal writings in plain English seems like a future problem waiting to happen.
“It says so right there!”
Shouldn’t that be “It says so right here-in!”?
I regret to inform you that you have failed the bar exam for the 261st time.
You write for your audience, whether it is law, science, engineering . . .
If Martinez can’t see the problem with having two different legal texts, one a plain English “explainer” and one in legal jargon, then I really question whether he paid attention in law school. Which text controls in the event of a conflict or (more likely) ambiguity between the two, when one party points to the plain English as serving his point and the other party points to the jargon as serving his point? In which style, plain or jargon, will the clause determining which text controls be written in? This happens a lot in multilingual contracts and in some international treaties, where the different languages have different implications that leads to the parties having different views as to what their rights are.
I’d ask if he ever had to get involved in an actual legal dispute, but clearly the answer is no since he went straight from Harvard law to a PhD program in brain and cognitive science.
Now instead of having two versions of the contract (English & French) up here in Canada, we can have four. More words for lawyers to write means higher fees for us non-lawyers.
… and I’m not going to mention the problem with Oxford commas…
Missing from the argument that legal writing should be clearer to others is the client. Lawyers acting for clients serve those clients, not non-clients reading contracts or disclaimers or whatever. If more readable contracts are in the interests of clients (e.g. if courts find more likely to be enforceable because clearer?) great. But if not, lawyers should continue to use the language with more predictable outcomes.
Maybe I’m being naive but it seems to me an attorney could/should explain the legal terminology to the client. An analogy might be the physician ain’t gonna lay all that medical terminology on patients.
“Make things as simple as possible, but no simpler.” –(maybe) Albert Einstein.
Words to live (or at least write) by.
Noel Erinjeri
The party of the first part would like to thank you for your post. And for this observation, “Written contracts are for the benefit of someone who wasn’t there when hands shook.”
Though “…or who didn’t realize the other side had their fingers crossed during the handshake.” is a reasonable extension.