Spare Us the Legalistic BS: I Respond to an Item on “Above the Law”

Last Friday I noticed this post on Above the Law. It’s by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It.

According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, “the day-to-day legal universe has been slow to move away from archaic phrases, unnecessary Latin, and other awkward legalese.” He goes on as follows:

It is safe to say that nobody likes legalese. So why do we still use it?

You need to be brave to step away from what you know works. Sure, every time we see archaic phrases or unnecessarily redundant words, you roll your eyes, but we still use them. We do so because it works. In this profession, where a placement of a single comma can make an important difference, practitioners are nervous about swaying away of the formula that has been proven to work.

Sure, writing “convey and bequest” or “last will and testament” is redundant, but lawyers have been doing it for a long time and it never caused controversy, so why change it now? This is especially true with documents where intent plays such an important role, one may look too much into the fact that the drafter of the document purposefully chose to change standard centuries-old terminology. In other words, changing ingredients in a proven recipe can only hurt, no matter how unlikely.

Savic says three times in one paragraph that traditional legalese “works.” But that’s not so.

One way in which traditional contract legalese doesn’t work is that it’s conducive to confusion, and confusion wastes time and can lead to fights. In A Manual of Style for Contract Drafting and my other writings, I show how many traditional phrases—for example indemnify and hold harmless and moral turpitude—are confusing and routinely give rise to litigation.

Furthermore, even if it doesn’t lead to disputes, traditional contract legalese turns contract prose into a thicket that readers have to hack their way through. Savic mentions convey and bequest and last will and testament, both phrases that occur in wills, which are a kind of contract. I’m willing to assume that neither phrase has given rise to litigation, but generally you don’t find such phrases in isolation—they travel in packs. That’s why I wouldn’t dream of reading the will I paid a trusts-and-estates lawyer to draft for me; it’s essentially unreadable. You could replace each of convey and bequest and last will and testament with a single word, and doing so would achieve modest economies. But do the same thing with each clunky bit of legalese and you have an entirely different document, one that you can read more quickly and actually understand. (Don’t make the mistake of assuming that making contracts clearer is a sop to nonlawyers. That’s a classic misconception: lawyers too are bamboozled by traditional contract language.)

Perhaps when Savic says that traditional legalese “works” he means that it has been “tested” by the courts. The idea is that it’s safest to use contract language that courts have had occasion to interpret. That way, you’re sure what your contracts mean. But that’s a pernicious notion, in that it condemns you to recycling dysfunctional language instead of saying clearly whatever you want to say, using something other than language that was so confusing that it wound up in court. For more about “tested” contract language, see my post from February 2016 (here).

But isn’t change risky? Not inherently. When considering change, you compare the costs and the benefits. In other words, you consider what you want to express, the alternatives available, and what the courts have said, and then you make your choice. In a given context you might decide that the traditional wording is sufficiently unclear that it’s worth changing. Or you might decide that the traditional wording constitutes a term of art that you couldn’t replace without a lot of extra words. (The phrase security interest is an example of such a term of art.) I’ve been engaged in that sort of analysis for the past twenty years, and it’s grueling. But my analyses are readily available.

So in saying that “changing ingredients in a proven recipe can only hurt,” Savic is mistaken: it’s traditional language that hurts, and an informed drafter wielding modern usages can fix that. The parties to a deal are free to express it however they see fit, and it’s liberating when they and their lawyers elect to express it clearly. All lawyers have is words. If you feel compelled to parrot dysfunction and are unwilling to rely on the power of standard English, you’re putting yourselves and your clients at a significant disadvantage, in terms of time and money wasted and potential risk unwittingly assumed.

Savic says that you have to be brave to change. Yes, change requires some guts, but because of peer pressure, not because traditional language works. I discuss that in this post from last week.

How is it that Savic is so mistaken? It’s relevant that although Savic also represents clients “in consultation on transactions,” he focuses on litigation. After years of wading through commentary on contract language, I’ve come to the conclusion that if someone who focuses primarily on litigation offers advice on contract language, it’s highly likely that their advice will in fact be misinformation. Savic’s post fits that pattern.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.