Top 10 reasons lawyers produce hard-to-read documents.

The cynical view is that lawyers purposely make legal documents hard-to-read so that lay people have to rely on them to interpret and negotiate the documents.  There may be a bit of truth to that, especially in former times, but I don’t think most attorneys intentionally make their documents difficult to read.  There are many other valid reasons why legal writing is so obtuse.  Here is my List of the Top 10 Reasons Lawyers Produce Hard-to-Read Documents:

Top 10 Reasons Lawyers Produce Hard-to-Read Documents  

10 Trade Guild Affectation Discussed above — I don’t believe most lawyers make things complicated on purpose, but one can see a perverse incentive to do it.
 9 Convention It’s always been done this way, and lawyers haven’t been exposed to something better.
 8

Esteem of Peers

 

Lawyers want to sound like other lawyers, so they will be respected.  This is different from intentionally making the document difficult to read to protect a trade guild’s insularity.  I once had a senior attorney reject my draft, not because of its substance, but because he said it sounded “like two people talking on a street corner”.  He didn’t mean it as a compliment, but he should have.
 7 Countervailing objectives Securities disclosure documents and some consumer contracts have countervailing objectives – one purpose is to serve as a marketing document, but the other purpose is to be a record of full disclosure. 
 6 Experience Lawyers get good at parsing long sentences with lots of nested qualifications and with the primary verb well-hidden near the end.   (That is to say, they get good at reading bad writing).  They also get familiar with the standard provisions in their specialty.
 5 Expense For efficiency, lawyers rely heavily on prior documents and industry templates as starting points.  It would take quite a bit of time to redraft from scratch, and neither they nor their clients want to pay for it.
 4 Fear A lot of thinking and experience has gone in to prior documents.  Lawyers fear that if they re-write a standard document they may miss a detail that matters.   
 3 Negotiated document Because most contracts are negotiated, they are often the work product of multiple authors with different agendas and styles.  Lack of coordination and last minute edits all contribute to hard-to-read documents.
 2 Complexity The subject matter is complicated, full of conditions that are qualified with exceptions that have provisos and further stipulations.  
 1 Unit of Truth Problem The number one cause (in my opinion) of unreadable documents is, as legal drafting Guru Bryan Garner put it, “. . . the fear of qualifying a proposition in a separate sentence, as if an entire idea and all its qualifications had to be fitted into a single sentence.”  Another plain English proponent, Howard Darmstadter, calls this the Unit of Truth Problem — lawyers think the unit of truth is the sentence, when in fact it is the whole contract. 

 I believe the one thing that would make legal documents more readable is to cure lawyers of the Unit of Truth Problem.  As I observed with Reason No. 9, legal matters are full of qualifications and exceptions.  I see the following scenario over and over again.  After rounds of negotiated changes, another exception or qualification is introduced.  The drafter searches for another way to insert a a parenthetical phrase within a long, complicated sentence that already has multiple nested qualifications.  It’s poor drafting, and the sentence becomes impossible to read without parsing it carefully.  But not putting the exception within the same sentence causes the lawyer real angst.  Because in the lawyer’s view, the sentence wouldn’t be true if the qualification doesn’t come before the period.  Darmstadter, Garner and other plain English proponents remind us that the “Unit of Truth” is the whole contract.  That it is perfectly acceptable for a later sentence to modify an earlier sentence.  Of course, it’s poor drafting to bury a qualification in another part of the document, but it is perfectly acceptable to qualify a sentence by the one that immediately follows it, as in this example: 

A claim for exemption, which in the case of filers who have reached their 75th birthday may not exceed $4000, must be filed on form AB-34 before July 13th each year.

Rewrite: A claim for exemption must be filed on form AB-34 before July 13th each year.  Filers who have reached their 75th birthday may not file a claim for more than $4000. 

 If you are like me you had to read the first example twice to get its full meaning.  

Here are some other ways to attack the Unit of Truth Problem:

  • Condition readers early with sentences qualified by a following sentence.
  • Bullet point and tabulate.
  • Use “if – then” construction.
  • Begin sections with an encompassing sentence that sets the stage for a collection of operative sentences. For example:

 The conversion price of the preferred stock will be adjusted for dilutive issuances of new securities according to the rules set forth in this Section.

The whole goal is to produce legal documents that communicate effectively and efficiently.  Prose is effective when readers understand the message.  It is efficient when readers can understand the message the first time they read it without stopping and re-reading.  Efficient writing may sometimes take up more space on the page than less efficient writing.  

If legal documents are obtuse, clients simply don’t read them.  Or they do their best to plow through them but can’t follow them.  The underlying idea of a contract is that both parties reach a “meeting of the minds”.   This is less likely to happen if both sides are relying on their lawyers to interpret the contract for them.  It also puts the lawyer-client relationship at risk if there is ever a problem.

I aspire to follow the following principals in the documents I draft (you should encourage the same from your lawyer, and consider applying these principals to your writing):

  • Keep average sentence length to 20 words, and vary the length (a well-written document should sound like the Gettysburg Address, which adheres to this principle)
  • Break up long sentences with bullet points and sub-sentences.
  • Use active voice over passive.  
  • Keep the verb towards the beginning of the sentence.
  • Use active, rather than passive, voice.
  • Avoid nested modifiers and parentheticals.
  • Use if-then construction.
  • Use tables if multiple ifs and multiple thens.
  • Keep modifiers near the modified word.
  • Avoid double negatives.
  • Use will, must, and may rather than shall (shall can have at least two, contrary meanings)
  • Write numbers one time, not two (2) times.  (It seems to be a carryover from the days of handwritten form agreements.  It’s not necessary, slows reading way down, and invites error.)
  • Minimize definitions, avoid nesting them, and don’t define things away from their common meaning. (Classic example – Rule 506 says you can only sell to 35 “purchasers”.  Rule 501(e) excludes “accredited investors,” usually the only purchasers, from the computation of the number of purchasers.)
  • Use common language; avoid legalisms and jargon.
  • Don’t use any of the following words:
    • herein
    • therein
    • thereof
    • such
    • provided, however,
    • shall
    • thereby
    • whereas
    • therefor (but do use therefore)

Do the documents I produce reflect all of these principals?  Unfortunately no, for many of the reasons in my Top 10 List.  But I keep trying to improve, and as I get more advanced in my practice I have more control over my starting point when I draft.   And I always welcome suggestions for better language in my documents.  

So why post this article on a website primarily for clients?  Because clients have the power to change legal drafting standards by demanding better from their attorneys.  Better documents, faster, more efficient deals with fewer misunderstandings can start with you.

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