In this March 2022 post, I examined an article by Eric Martinez, Frank Mollica, and Edward Gibson about their study showing that contracts are poorly written. I said that this article tells us nothing we don’t already know.
The same authors are now back with another article, this one entitled Even Lawyers Do Not Like Legalese (here), published in the Proceedings of the National Academy of Sciences. I learned of it because it was the topic of this article in The Economist (behind a paywall). The new PNAS article is more problematic than their previous article—because of flaws in the design of the study, the new article is misleading. (All references to an article in the following analysis are to the PNAS article.)
The New Article
Here’s the “Significance” paragraph from the new article:
Why do lawyers write in such a convoluted manner? Across two preregistered experiments, we find that lawyers a) like laypeople, were less able to understand and recall “legalese” contracts than content of equivalent meaning drafted in a simplified register; and b) rated simplified contracts as equally enforceable as legalese contracts, and rated simplified contracts as preferable to legalese contracts on several important dimensions. Contrary to previous speculation, these results suggest that lawyers who write in a convoluted manner do so as a matter of convenience and tradition as opposed to an outright preference and that simplifying legal documents would be beneficial for lawyers and nonlawyers alike.
The first experiment tested what the authors call the “curse of knowledge hypothesis”—the idea that lawyers are so immersed in legalese that it’s natural to them and they don’t realize the challenges it poses to others. The second experiment tested the “copy-and-paste hypothesis,” the “in-group signaling hypothesis,” the “it’s just business hypothesis,” and the “complexity of information hypothesis.” Each experiment presented lawyers with a contract extract representative of legalese and a simpler version of that extract and then posed questions relating to the differences between the two versions.
The Choice of Hypotheses Is Confusing
In effect, these experiments explore two questions. First, do lawyers acknowledge that legalese could be written more clearly? And second, do lawyers consider that the clearer alternative to legalese is acceptable? But the authors muddy the waters by building the study around their five hypotheses. Instead of testing facts, their five hypotheses attempt to test something murkier—explanations for those facts.
Regarding experiment 1, “the curse of knowledge” refers to a cognitive bias that occurs when an individual communicating with others assumes they have a similar background and depth of knowledge. But for two reasons, that’s an unhelpful concept on which to base experiment 1. First, the curse of knowledge doesn’t suggest that a speaker who has been so cursed thinks that their way of communicating is the only way of communicating, or is the clearest way of communicating. Instead, it suggests a choice that misreads the audience. And second, there’s another possible reason why some lawyers might think that legalese is clear: they might never have considered that one could write contract prose differently. In fact, experiment 1 itself might be what causes a lawyer to consider, for the first time, an alternative to legalese.
Regarding experiment 2, the four hypotheses are confusing in three respects. First, the experiment aims to validate the first hypothesis and refute the other three—an awkward mix. Second, I suggest that the “in-group signaling hypothesis” and the “it’s just business hypothesis” are functionally indistinguishable. And third, the latter three hypotheses don’t exhaust the possible reasons for sticking with legalese; consider the various sources of inertia Casey Flaherty lists in this 2018 post.
So the study would have been clearer if instead of basing the hypotheses on explanations it had tested these two hypotheses:
- Lawyers acknowledge that legalese could be written more clearly.
- Lawyers consider that a clearer alternative to legalese is acceptable.
Discussion of explanations would have better been left to the analysis section.
Contrary to the Design of Experiment 2, Clarity Doesn’t Affect Enforceability
In experiment 2, the subjects were asked to rate, among other things, the enforceability of the contract extracts. But if you assume that each “legalese” extract contains a provision that doesn’t raise enforceability issues, it follows that the ostensibly clearer “simple” version expresses the same meaning and so wouldn’t raise enforceability issues either. So that element of experiment 2 isn’t legitimately a survey. Instead, it’s like asking people whether the earth is flat or round.
The Experiment Extracts Aren’t As Advertised
The screenshot below is from the article. It shows one of the pairs of “legalese” and “simple” extracts used in the study. The study participants weren’t shown the two extracts side by side. Instead, some were given the legalese version of the passage and others were given the simple version.
I wouldn’t use for these extracts the labels “legalese” and “simple.” Instead, “batshit legalese” and “legalese,” respectively, would be more accurate.
For one thing, the “legalese” extract features three marginal traditionalist usages, namely inter se, scienter, and hereinbefore. The word scienter occurred in only 13 contracts filed on the SEC’s EDGAR system in the 60 days before the day I ran the search (a couple of weeks ago). (By way of random comparison, the word negligence occurred in 3,742 contracts.) The phrase inter se occurred in only 21 contracts. (I confess to not having encountered inter se previously!) And the word hereinbefore occurred in only 201 contracts. (By way of comparison, more than 9,000 contracts filed in the same period use the word hereunder.)
As for the “simple” extract, it’s utterly different from how I’d say what it says. To pick just one example, I wouldn’t use the word willfully. (See this 2007 blog post about willful.)
The net effect is that these extracts make it easy for a lawyer wedded to traditional contract language to reject the “legalese” version or feel at home with the “simple” version (depending on which they were exposed to). As such, the extracts might have skewed the results of the study.
The Experiment Extracts Underplay the Impact of Legalese
Based only on my review of the extracts in the image above, it might be that the extracts in the study skirt what is the most pernicious result of legalese—confusion. Yes, legalese is certainly old-fashioned and wordy, so the reader wastes time disentangling what’s being said. But beyond that, plenty of phrases that are the stock-in-trade trade of legalese (time of the essence, efforts provisions, indemnify and hold harmless, consequential damages … I could go on and on) give rise to fights. Extracts that don’t include such phrases can’t be said to be fully representative of legalese.
Regarding how that relates to the study, omitting such phrases might make it easier to lawyers to disdain the “legalese” version: because the conventional wisdom attributes substantive implications to such phrases, it’s safe to say that some lawyers would be reluctant to give them up. But it wouldn’t have been possible to test that in this study, because it would result in the “legalese” and “simple” versions arguably expressing different meanings rather than just levels of clarity.
The Problem with Lumping All the Experiment Subjects Together
The study results show what proportion of the experiment subjects responded in a given way to various questions. As such, the study isn’t illustrative of the views of individual lawyers, just as testing wastewater for COVID-19 tells us nothing about the status of individuals. Nevertheless, the “Significance” paragraph speaks in terms of lawyers collectively, as if they act in lockstep.
That’s unrealistic, and it doesn’t match my experience. I’ve found that the appetite for legalese varies among lawyers—I’ve encountered plenty of staunch traditionalists.
The awkward reality is that the legalese that’s endlessly copy-and-pasted didn’t all originate in the sixteenth century. Instead, new legalese is constantly being created anew and fed into the copy-and-paste machine by lawyers who are opting for legalese, clearer alternatives be damned.
So in this way, too, this article paints too rosy a picture of the willingness of lawyers to forgo legalese.
A Production Error
I noticed a production error in the article. In the screenshot below, the highlighted portion repeats the preceding four sentences. (Note how the word “gobbledygook” is the last word before the highlighted extract and is the last word of the highlighted extract.) Because this glitch might confuse readers, I mention it here.
My Take
For purposes of drafting contracts, we are all, to some extent, cranking the handle of the copy-and-paste machine. A lifetime of anecdotal evidence suggests to me that we react differently. Due to a legalistic mindset, cognitive dissonance, or some other mechanism, some find ways to rationalize the dysfunction—ours is the best of all possible worlds! Others are aware of the dysfunction but don’t have the time, authority, means, or expertise to do anything about it. And because they’re inexperienced, or jaded, or lacking in semantic acuity, still others are oblivious—it’s all a blur.
Given its shortcomings, the new study doesn’t add to my understanding of this.
(I sent the lead author, Eric Martinez, a draft of this post. In his initial reply, he said that a lot of it looked “pretty reasonable” but that he had some comments. I ended up giving him two weeks to run his comments by his co-authors, but Eric and his co-authors ultimately decided not to offer any comments. If anyone else has comments, I’d be pleased to hear them.)
