I noticed that another legacy-media holdover, Scientific American, has devoted an article (here) to that recent study on lawyer attitudes to contracts legalese. In this recent post, I explain how that study is misleading.
But that’s not what this post is about. Instead, in passing I noticed this in the Scientific American article:
Jeremy Telman, a law professor at the Oklahoma City University School of Law and editor of the ContractsProf blog, agrees that contracts shouldn’t be “needlessly opaque.” But he points out that attorneys often have a good reason for using seemingly byzantine language, including that it may have already been tested in court. “If you change something,” Telman says, “you’re kind of rolling the dice to see if the court will understand it the way you intended.”
Yikes!
One encounters various defenses of dysfunctional contract language. The most prevalent might be that traditional contract language has been “tested” by the courts, so changing it is risky. In the above extract, Telman perfectly captures tested-language orthodoxy.
My first blog post about the notion of “tested” language is this 2006 post. I’ve since had occasion to revisit the subject in this 2013 post, this 2016 post, and this 2017 post.
My 2006 post articulates the flaw with invoking “tested” contract language:
If contract language came to be tested, it’s because it failed to clearly state the intent of the parties. Why rely on language that resulted in litigation? Instead, express any given concept clearly, so you don’t have to gamble on case law breathing into it the desired meaning.
Warriors for “tested” contract language would seem to be defeatist. In effect, they seem to want us to stick with dysfunctional contract language because either (1) they think we’re incapable of expressing the intended meaning clearly or (2) they think we can’t trust courts to comprehend the intended meaning, even when it’s expressed clearly.
But like all defenses of dysfunctional contract language, I think the notion of “tested” contract language is a smokescreen for the real issue—inertia. Here’s what I say about that in my 2016 post:
I’ve found that those who invoke “tested” contract language generally don’t attempt to go into detail. They’re just happy to have a convenient excuse for inertia; they have no interest in offering evidence to back it up.
Totally Agree. Well said!
When lawyers say they prefer to use tested language, I correct them by saying you mean contested language.
Nice!
Damn, I wish I’d heard that one a lot earlier. Brilliant.
Usually the “tested language” is found to have a specific meaning in light of the typically unique [if not sometimes bizarre] underlying fact pattern. So to rely on the tested language one must write a provision that has been found to have more than one reasonable meaning, and confirm that all the underlying facts upon which the court relied, are present and will not change. It would be so much easier to just write clearly in the first place.
Thanks, Ken, for calling attention to the portion of the article that quotes me. The only thing worse than being talked about is not being talked about. I had a lengthy conversation with the reporter, in which I offered arguments in favor of plain language and reasons why attorneys might be hesitant to change form contracts with which they (or their colleagues) have worked in the past. The reporter chose what parts of the interview to use, leaving out others, including the part in which I recommended that he contact you, since your views on this subject are so well-established and have influenced my thinking on the subject.
Hi Jeremy. Sorry for the delay in my posting your comment; for whatever reason, I wasn’t notified of it. And sorry that what ended up in that article didn’t represent your conversation with the journalist. I’m shocked! Ken