Currently, lawyers use a traditional style of drafting with a substantial use of legal jargon. Unfortunately, this makes documents long, confusing and poorly structured. A client rarely reads the contract and remembers or understands everything that is written. This often results in feelings of frustration and confusion.
So, what is the solution? It is simple. Plain legal language.
This style of writing moves away from traditional long-winded legal syntax to embrace a major shift in the global legal drafting culture. Simplicity achieves clarity and transparency, and this results in an element of humanity being introduced into legal communication.
So why do lawyers still use traditional methods?
Benefits of Remaining Traditional
Lawyers rarely draft new contracts from scratch. Instead, they use older templates which have often been written in a traditional manner. Re-using templates can be a cost-effective and time-saving solution to drafting standard documents. This efficiency, however, is only short term. A more effective, long-term solution would be creating clear templates in plain English so that all terms are to the point and indisputable.
Using a traditional legal style is what lawyers are taught and what they know. Lawyers who have practiced in the industry for some time are hesitant to step out of their comfort zone with a new style as it is both difficult and time-consuming. Following this, a simpler and shorter document might create more work for lawyers at the beginning stages. However, whilst traditional lawyers are reluctant to make the change, new entrants into the profession should be encouraged to adopt a plain legal style.
Additionally, lawyers are hesitant to stray from old templates as they afford some certainty on the risks within the contract. Redrafting templates would require a full risk assessment review to ensure the clauses are legally correct and adequate. Lawyers question why we need to update the system when they could just continue using time-tested templates.
Lastly, it cannot go unmentioned that lawyers do want to write and sound like lawyers. There is a sense that lawyers believe they will lose their status and respect as specialists in their area if they move away from complex legalese to plain legal language.
Ironically, lawyers dislike professionals from other industries who speak in technical jargon. When speaking to an IT expert, they would rather the solution be in plain language without confusing explanations. Therefore, it is safe to say that lawyers who refuse to use plain simple language, frustrate their clients and colleagues by addressing them in unfamiliar terms.
Why is simplicity key?
Traditional legal documents are more difficult to interpret and understand. It would be easier for a lawyer to find an answer during a document review if the text is in fact clearer. It is undoubtedly obvious that short, simple terms save time.
Clearlet Lease is an example of lawyers moving towards simpler language. They drew up new terms in order to lease business units in a shopping centre. This lease agreement was drawn up to appeal to the tenants as well as to enable a cheaper letting process. It was important to include more readable terms to ensure the landlord and tenant understand their obligations. This new lease was modelled on pre-existing terms but included additional clauses which were usually only added after a second or third round of negotiations. This resulted in a much shorter lease process which meant that the tenant could use the property sooner and start paying rent earlier. Following its success, an even shorter version was created called ClearLite which applied to leases of up to a year and was designed so tenants could sign and return it within a day.
In addition, as international trade increases, it is critical that contracts are understood across borders. Language simplification would lessen any unnecessary complexities which legalese brings for individuals that do not speak English as their first language.
Contractual terms are not only used by lawyers. They need to be read, understood and complied with by other administrators such as purchasing staff, project managers, contract managers, engineers and other professionals which means that making the contract shorter and simpler will only improve business and compliance. It is often the case that lawyers deal with queries particularly about the terms from staff and customers. Rewriting and explaining these terms without using complexities would allow lawyers to allocate more time to high-value work.
The Way Forward
It is undeniable that moving from a traditional style to a simpler and easier one requires time, effort, skill and courage. The process is unlikely to be completed overnight and would probably not be accepted by the legal industry if it did.
We recommend that lawyers look to refining a template a time to minimise disruptions to operations. It would be best to amend the most frequently used template to remove any superfluous clauses.
Once that template is chosen, lawyers could simplify terms which:
i. are most problematic and ambiguous;
ii. always need clarification;
iii. are frequently used in many contracts; and
iv. need to be revised in line with up-to-date legislation.
The Bottom Line
Using plain English in contracts is not going to threaten the legal profession. The aim is to improve the lives of lawyers, clients, and third parties to enhance everyone’s understandings of terms and obligations.
However, old habits die hard. It is difficult to change the mindset of a traditional lawyer who has always done things a certain way. All businesses strive to shorten the time administering their contracts, to allow for more time realising business goals, but the reality is that change in any business is hard.
Changing a practice which is so entrenched in an established institution is bound to take patience, commitment and courage. Nevertheless, plain legal language is the way forward. With law as the backbone of every business, the sooner lawyers adapt their outdated styles, the sooner commercial progress can be made.