“Kicking Away the Moments that Make Up a Dull Day”[1]: Moving Away from Legalese

Written by Charalampos Amanatidis.

Bio: Charalampos (or Bambis as we call him at TLB) is a Law graduate who is just finishing off his Masters in Philosophy. He’s also Greek so the ties to philosophy are not just from academia but also through his DNA… could you tell?

 To set the scene...

Legal contracts; what a nightmare; is that not true? But, should it be this way? Plato talked about the tripartite of Logos (the concept of logic appeal), Nomos (the concept of law and obligation in Ancient Greece) and Taxis (the concept of order). So, I now look at a legal contract and I think to myself : There is Logos, there is Nomos (necessarily), however Taxis is problematic; even though it is there, I want it changed; I want it more simple and at the same time equally effective.

It is a true fact that contracts are lengthy and full of legal jargon which is most times incomprehensible to businesses-and even to lawyers but do not say this to anyone. We have all accustomed ourselves with large sentences and ridiculous definitions of legal concepts which have been there for years or even centuries.

 I do not want to lie though; it sounds nice; it actually feels nice. We lawyers always have the tendency to speak high of the Law and of ourselves as the ‘loyal guardians of justice’. We want to feel extra-ordinary; how powerful is human nature right? People divide themselves-internally- to ordinary (herd) and extra-ordinary (Napoleon-type). As human beings we are in a constant tension between Animality and Spirituality. Hence, we want to transgress ourselves and this is not always possible. We want to convince ourselves we are something we are not; that we are born to be extraordinary. But, there it always hits the Darwinian tendency of us being seen as spiders in a web. Morally, also, we do not like to understand we have both herd and noble characteristics; both ordinary and extra-ordinary characteristics.

Yet, let us leave this aside. What I am talking about though is the idea that the road towards extra-ordinariness (legal humanism) is better opened through ordinary language for ‘ordinary’ people.

On this train of thought-and I am not the only one “on board”-it is time for things to change. There is no reason for business negotiations to be delayed because of the legalese of contracts. There is no reason for business leaders to not be able to understand and feel comfortable to sign contracts without the omnipresence of a lawyer.

Have you ever asked yourselves why young people believe lawyering has become duller especially during the times of the Internet of things? Let’s be honest, we always have propositions of the type: “Law is interesting but you feel you are not at the first line of business...you know what I mean?” ; and, on the other hand of the spectrum, we have big firms saying: “You youngsters, it is all about commercial awareness!”.

The question that strikes the reader is the following: How can these coincide in the most harmonic way? And the answer is by getting rid-off the legalese of the contracts and ‘rewriting’ them in a business promoting way. We save time and money; and time is money. This idea is not novel. It has been here from the times of President Nixon[2], but now it is time for “simple” or “ordinary” lawyering to become the trend. The future lawyer is the simple lawyer that speaks ‘business’. Lawyers that speak in ancient terms for the mere purpose of preserving the status-quo will inevitable become a dying breed.

A real-life example- in GE Aviation

In 2013, GE Aviation’s digital-services unit was set to the task of managing their legal department efficiently, the unit’s legal activity; and that included contracting. “Speed to market was key”[3]. Though a sound business strategy was in place, there was an obstacle; the complexity of the contracts were cause for lengthy negotiations, doing nothing more than “frustrating prospective customers”[4]. There were seven different contracts, averaging 25 pages each with extensive definitions and legalese to another level. There was thus one thing in common despite the distinctive language and structure of each document. “None of them used plain language; legal jargon and complexity pervaded them all”[5]. Do these comprise effective legal documents or “a textbook of quantum physics?”[6]

Hence, there arose a need of transformation or a kind of metamorphosis. What was endeavoured was simple: convert the seven formats into one plain-language contract.

Why? For, in law-and in real life communication- everything is about language-games. Words speak for themselves; we play with words to get results; we sometimes win and sometimes lose. When it comes to contracts though, we should prefer simpler rather than extremely complex language-games. I mean, we all like scrabble but we have to understand when it is better to play jenga.

It was however important for the contract to be able to protect GE’s interests. A multidimensional team was set up to move on with the task; providing knowledge and perspective. Guess what: It worked!

There were no more extreme legalese and extensive recitals to other legal documents. Lawyer or non-lawyer you could understand the stakes of the contract. Teamwork was enhanced through exchanging information with the legal team and expertise of the outside firm of Weil, Gothsal & Manges. This type of outsourcing was responsible for vetting the contract in a way in order to protect GE’s interests in the most commercially aware way. And this was accomplished with the language remaining plain and understandable. Time, money, and a lot of frustrating sweat were saved. The manager’s response as well as customer’s satisfaction was more than adequate.

Back to reality...

To reiterate, GE is not alone. The Law Boutique (TLB) - like GE- leans towards plain-legal-language contracts. It is important to note though that this does not mean abandonment of the legalese altogether. It rather means “humanising” the legalese to become more efficient with outsourcing becoming part of the game.

Unlearning to write like a lawyer is not easy but it is possible and eventually more productive. The process is not straightforward either but it is worthy. We have to be patient and succinct; non-trivial and commercially informed for our client’s needs. Nevertheless, the result is: less money, more time, greater efficacy.

From our perspective, there is one way to get away from the legalese and maintain a business profile: we respect our clients- and ourselves- but we are not naive; and to avoid naiveté you need to understand the commercial aspects of each contract and the legalese behind it.

To cut the story short:  ‘modern’ lawyers are to judge the context; it is not for the context and the legalese to subsume the lawyers. It is in this way that we- fellow lawyers- would be able to say vehemently that we are in the first line of business; when we speak plain language (more similar to our clients) and we play the correct language-games; when we use our legal knowledge in a more practical way.

Hippocrates once said: “Life is short, art is long”. Maybe the life of extreme legalese is short. Lawyering should-and could- become more like sagacious art and less than legal computing; especially in the automatisation period in which we all live in. I am not claiming that legalese should be washed away completely since this is not possible. However, the law- as an open and closed social system of information processing- is able to adopt its ‘programming language’ while maintaining its ‘coding platform’; the code is and will always be legal/illegal independently of the “surface language”.

Some people say- and I prefer to agree with them- that you never jump on the same river twice. This signifies or symbolises a world of constant change; a world of Becoming instead of Being. That is why I ask you: Isn’t it better to become the lawyer you aspire to be; the one who though understands law and commercial life is not “bogged down” by legalese?

At the end of the day, one thing is sure; and we learn it from primitive mythology- and trust me the primitive man is sometimes really intelligent compared to us modern hyper-rational creatures. Life feeds on life and that is why our dear primitives were not afraid of death. Why should we then be afraid of the “death” of extreme legalese?

 Did the above provoke your thoughts?

Contact me at charalampos@thelawboutique.co

 

[1] Time, Pink Floyd

[2] The case for Plain-Language Contracts, by Shawn Burton

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.