Legalease, and Why Lawyers Do It

Posted: July 7th, 2009 | Author: | Filed under: Small Business Topics | 2 Comments »

For as long as I can remember, people have complained that they cannot understand legal documents.  And I can’t blame them, because so often it’s absolutely true.  For example, take the following fairly typical wording:

      “The parties hereby agree and confirm with one another that immediately subsequent to the incorporation of the Corporation, all assets owned by them shall be transferred to the Corporation by Bill of Sale or Assignment, as the case may be, free of all liens, mortgages, security interests or other encumbrances, in consideration for which the parties shall caused the Corporation to issue to the parties shares of its Common Stock in the proportion that their respective contributions of assets bears to all assets contributed”.

Aside from the fact that it’s not clear who must transfer assets and the needless capitalization of common nouns, there is nothing much wrong, technically, with this wording.  But you could also say:

            “Immediately after the company is formed, the parties must transfer all their assets to it, free of any liens, in return for a proportionate number of company shares.”

So why do lawyers write this way?  For a combination of reasons: first, that’s the way it’s been done for a long time, and if you write differently, you separate yourself from the herd, which is scary for most lawyers; second, many lawyers are lazy – it’s easier for them to find a “standard form” than to think through the issues for themselves; third, many lawyers have simply never been trained to write simply or translate legal concepts into plain English; fourth, I think lawyers often gratify their own egos by using legalese; and lastly, lawyers tend to believe that if they simplify language, they must be leaving something out which exposes them to the threat of litigation (ironically, it’s the agreements that say too much with language that no-one understands that are often the most contentious and litigated).

When I started practicing, I was fortunate enough to be assigned to a very senior, eminent lawyer who reviewed each and every document and letter that I wrote during a two year apprenticeship.  He literally used to interrogate me about my choice of phrases and use of words, strike through most of my language with a red pen and instruct me to try again.  He drummed into me that one should use short paragraphs and short sentences.  Replace technical words with simple ones that non-lawyers understand.  Use the active voice wherever possible so that the reader knows who has to do what.  Describe carefully who has to do something, when it must be done, how it must be done and where it must be done.  Never use words you don’t understand.

It’s the hallmark of a competent lawyer to be able to distill the very essence of any transaction or task to its essentials, and then write these down so that his or her client understands them.  After all, isn’t that the very essence of lawyering?


2 Comments on “Legalease, and Why Lawyers Do It”

  1. 1 Kaye Taylor said at 12:35 pm on July 9th, 2009:

    What a lovely lawyer you are… I wish you were in the UK 🙂 Love this post – it’s really great to hear that there are lawyers out there that think this way. Cheers! @ThisisKaye

  2. 2 admin said at 10:45 am on July 16th, 2009:

    Thanks again for the positive feedback Kaye. I’m going to try to write some more interesting stuff – if you have any topics you’d like me to comment on, let me know.

    Simon

    [WORDPRESS HASHCASH] The poster sent us ‘0 which is not a hashcash value.


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