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.”
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 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.