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I teach contract drafting to third-year law students. It's hard work to take a complex if-then-else statement and render it in plain English. Is there a reason

I teach contract drafting to third-year law students. It's hard work to take a complex if-then-else statement and render it in plain English. Is there a reason it needs to be in (harder to write and harder to understand) "plain English" rather than a "complex" series of if-then-else statements? Even dumb computers can understand if-then-else statements. Or is the "plain English" more valuable because it leaves things open to interpretation after the fact?

dctoedt 15y ago
@thwarted, one of the things commonly taught in contract-drafting classes is to break down dense verbiage into (i) subparagraphs, or at the very least, (ii) numbered subdivisions -- like this sentence. See also the IF: ... THEN: ... example in my posting above. Believe me, "plain English" is greatly desired by just about everyone, not least to head off later accusations of intentional obfuscation. But it takes time (which means legal fees), and to be honest, not everybody is good at it.
- thwarted 15y ago
  I guess my point is that that legalese "plain English" is harder to understand than if-then-else statements. And if it's harder to write to boot, then why bother? Even your example: IF: It rains at least one inch today but not more than two inches; AND: It doesn't rain tomorrow; THEN: You will turn on the sprinkler system tomorrow; AND: You will not do so the day after. is ambiguous and difficult to parse (I'm assuming you were using this an example not just for the caps and punctuation, but that this kind of ordering of statements is what is commonly used, even though it was a contrived example). At least two issues I see are: - the terminology is based on today but requires knowledge about tomorrow. This requires keeping more state to evaluate if the conditions are being met for a longer time. With this wording, it almost seems like it's setting me up to fail to remember to turn on the sprinkler today. This would be better worded as about today and having knowledge about yesterday. - The grouping of the last AND: isn't obvious as to if it's in the body of the THEN: or an alternative/conjunction for the entire IF: The intent would be a lot clearer as something like this (in some kind of mock-pseudo-code): if ( (no rain-today) and (rain-yesterday between 1 and 2 inches) and (sprinker-not-on-yesterday) ) then { you will turn on the sprinker } (at least, that's what I think your intent is, but I'm not quite sure since the goal is still somewhat impenetrable) But even this could be better written with more abstraction, perhaps by defining what it means for the lawn to be sufficiently watered: you will turn on the sprinker if (last time lawn received sufficient watering was before yesterday) sufficient watering is defined as ((sprinkler was on yesterday) or (less than 2 inches of rain occurred yesterday)) (but, really, I'm not sure that matches your intent either).
  - dctoedt 15y ago
    @thwarted, it'd be great if we could use pseudo-code. (One of my colleagues once proposed using flow-charting.) Unfortunately, many, many lawyers (and clients) are allergic to contract forms that don't look "traditional." I can say with great confidence that the typical reaction to a pseudo-code contract would be "WTF is this?"
    - thwarted 15y ago
      So it's momentum and fear of change (which plays into a fear of no-one-will-need-a-lawyer-to-decode-this, perhaps). Makes sense, but obviously not ideal. What can we do to change this, if anything?
    - Vivtek 15y ago
      So clearly you have to compile it into legal English. I don't see a conflict here.
  - sunchild 15y ago
    A lot of the ambiguity in contracts today has to do with structure, and not so much content. This may seem counter-intuitive, but consider some examples: 1. Lawyers have a bad habit of using "inline definitions" in contracts. That means that in the middle of a long sentence, they'll throw in a parenthesis such as ("Defined Term"). Now, any coder will immediately see that the scope of the "variable" Defined Term is ambiguous without a clear statement of assignment or equivalence. This is a structural issue. The lawyer instead should have put in the contract's glossary: "Defined Term means..." 2. Lawyers tend to use "or" with imprecision. That's why you see many "and/or" in contracts. They either need to use better logic operators, or be precise about logical OR vs inclusive OR. 3. Lawyers get sloppy with timeframes. "Within 30 days of..." is a common formulation in a contract. Do you think the drafter means 30 days before or after? Probably not both. Stuff like this is just sloppy structurally. 4. Lawyers screw up grammar. Commas are really important. Say I list off three conditions: You will do X if (a) thing that might happen, (b) thing that might happen, and (c) thing that might happen with reference to some other thing. Notice the "with reference to some other thing" at the end? If that is preceded by a comma, some courts will apply it to all of (a) through (c). Otherwise, it might only apply to (c). Stuff like that happens all the time. Now, sometimes ambiguity is OK, or even a good thing. Every question has its own time for an answer, and that time may not necessarily be in the contract. It's important to be pragmatic in a business setting. Since I said IAAL above, I'm including the standard ethics disclaimer: this is informational only, not intended as legal advice, and I don't represent the reader as legal counsel.
sunchild 15y ago
I draft contracts for a living (IAAL). The goal is always to draft a contract so that any reasonably competent judge or juror could understand the parties' intent. A lot of lawyers (most?) are terrible at this. They say things like "in the event that" instead of "if". They pepper their sentences with meaningless crap like "any and all" or "unless the parties otherwise agree" or "notwithstanding anything to the contrary elsewhere in this agreement" – all of which are utterly superfluous. The problem is rarely that the lawyer is invoking legalistic concepts. Sure, you might find a few references to statutory laws here and there in a commercial contract, but 99% of a typical commercial contract should be a simple statement of what the parties expect from each other. Also, non-lawyers tend to get confused by concepts like indemnities, warranties, and limits on liability. These things are dead simple in reality, but lawyers have a nasty habit of dressing them up in coded language. The emperor has no clothes. There are a few places where "magic words" are required by law, esp. around intellectual property rights, disclaimer of seller's warranties, etc. These are the exception, not the rule. It can get very difficult to clearly express business terms, but it's JUST LIKE WRITING CODE! Case statements, if-then-else, etc. If more lawyers approached contracts like code, contracts would be better. The problem is that contracts only have to "parse" in court. Runtime for contracts is a breakdown in the relationship, and no one believes that the relationship will break down until it's too late. Those of us who approach the contract as something that needs to parse before the shit hits the fan have a different problem: everyone thinks we're overdoing it because they refuse to consider the downside potential. I could go on forever about this topic. Since I said IAAL, I must say this is informational only, isn't legal advice, and I don't represent the reader as their lawyer.
- mgkimsal 15y ago
  Perhaps "Test Driven" or "Test First" contracting will become hip in a few years? Not necessarily actually testing (as in, let's go to court) but mapping out "given this scenario, x, y and z happen".
  - r00fus 15y ago
    Having a contract validation test would be a worthy exercise for the party who didn't write the contract. This sounds like a great service opportunity for startup/employee contract lawyers... if contracts are like code, then a parser (or maybe legal code pretty-printer) could easily allow a skilled professional to sift through code. Even easier if the contract is standard for a large company. Any lawyers here care to pick my idea apart?

dctoedt 15y ago

@thwarted, one of the things commonly taught in contract-drafting classes is to break down dense verbiage into (i) subparagraphs, or at the very least, (ii) numbered subdivisions -- like this sentence. See also the IF: ... THEN: ... example in my posting above. Believe me, "plain English" is greatly desired by just about everyone, not least to head off later accusations of intentional obfuscation. But it takes time (which means legal fees), and to be honest, not everybody is good at it.

thwarted 15y ago
I guess my point is that that legalese "plain English" is harder to understand than if-then-else statements. And if it's harder to write to boot, then why bother? Even your example: IF: It rains at least one inch today but not more than two inches; AND: It doesn't rain tomorrow; THEN: You will turn on the sprinkler system tomorrow; AND: You will not do so the day after. is ambiguous and difficult to parse (I'm assuming you were using this an example not just for the caps and punctuation, but that this kind of ordering of statements is what is commonly used, even though it was a contrived example). At least two issues I see are: - the terminology is based on today but requires knowledge about tomorrow. This requires keeping more state to evaluate if the conditions are being met for a longer time. With this wording, it almost seems like it's setting me up to fail to remember to turn on the sprinkler today. This would be better worded as about today and having knowledge about yesterday. - The grouping of the last AND: isn't obvious as to if it's in the body of the THEN: or an alternative/conjunction for the entire IF: The intent would be a lot clearer as something like this (in some kind of mock-pseudo-code): if ( (no rain-today) and (rain-yesterday between 1 and 2 inches) and (sprinker-not-on-yesterday) ) then { you will turn on the sprinker } (at least, that's what I think your intent is, but I'm not quite sure since the goal is still somewhat impenetrable) But even this could be better written with more abstraction, perhaps by defining what it means for the lawn to be sufficiently watered: you will turn on the sprinker if (last time lawn received sufficient watering was before yesterday) sufficient watering is defined as ((sprinkler was on yesterday) or (less than 2 inches of rain occurred yesterday)) (but, really, I'm not sure that matches your intent either).
- dctoedt 15y ago
  @thwarted, it'd be great if we could use pseudo-code. (One of my colleagues once proposed using flow-charting.) Unfortunately, many, many lawyers (and clients) are allergic to contract forms that don't look "traditional." I can say with great confidence that the typical reaction to a pseudo-code contract would be "WTF is this?"
  - thwarted 15y ago
    So it's momentum and fear of change (which plays into a fear of no-one-will-need-a-lawyer-to-decode-this, perhaps). Makes sense, but obviously not ideal. What can we do to change this, if anything?
  - Vivtek 15y ago
    So clearly you have to compile it into legal English. I don't see a conflict here.
- sunchild 15y ago
  A lot of the ambiguity in contracts today has to do with structure, and not so much content. This may seem counter-intuitive, but consider some examples: 1. Lawyers have a bad habit of using "inline definitions" in contracts. That means that in the middle of a long sentence, they'll throw in a parenthesis such as ("Defined Term"). Now, any coder will immediately see that the scope of the "variable" Defined Term is ambiguous without a clear statement of assignment or equivalence. This is a structural issue. The lawyer instead should have put in the contract's glossary: "Defined Term means..." 2. Lawyers tend to use "or" with imprecision. That's why you see many "and/or" in contracts. They either need to use better logic operators, or be precise about logical OR vs inclusive OR. 3. Lawyers get sloppy with timeframes. "Within 30 days of..." is a common formulation in a contract. Do you think the drafter means 30 days before or after? Probably not both. Stuff like this is just sloppy structurally. 4. Lawyers screw up grammar. Commas are really important. Say I list off three conditions: You will do X if (a) thing that might happen, (b) thing that might happen, and (c) thing that might happen with reference to some other thing. Notice the "with reference to some other thing" at the end? If that is preceded by a comma, some courts will apply it to all of (a) through (c). Otherwise, it might only apply to (c). Stuff like that happens all the time. Now, sometimes ambiguity is OK, or even a good thing. Every question has its own time for an answer, and that time may not necessarily be in the contract. It's important to be pragmatic in a business setting. Since I said IAAL above, I'm including the standard ethics disclaimer: this is informational only, not intended as legal advice, and I don't represent the reader as legal counsel.

sunchild 15y ago

I draft contracts for a living (IAAL). The goal is always to draft a contract so that any reasonably competent judge or juror could understand the parties' intent. A lot of lawyers (most?) are terrible at this. They say things like "in the event that" instead of "if". They pepper their sentences with meaningless crap like "any and all" or "unless the parties otherwise agree" or "notwithstanding anything to the contrary elsewhere in this agreement" – all of which are utterly superfluous. The problem is rarely that the lawyer is invoking legalistic concepts. Sure, you might find a few references to statutory laws here and there in a commercial contract, but 99% of a typical commercial contract should be a simple statement of what the parties expect from each other. Also, non-lawyers tend to get confused by concepts like indemnities, warranties, and limits on liability. These things are dead simple in reality, but lawyers have a nasty habit of dressing them up in coded language. The emperor has no clothes. There are a few places where "magic words" are required by law, esp. around intellectual property rights, disclaimer of seller's warranties, etc. These are the exception, not the rule. It can get very difficult to clearly express business terms, but it's JUST LIKE WRITING CODE! Case statements, if-then-else, etc. If more lawyers approached contracts like code, contracts would be better. The problem is that contracts only have to "parse" in court. Runtime for contracts is a breakdown in the relationship, and no one believes that the relationship will break down until it's too late. Those of us who approach the contract as something that needs to parse before the shit hits the fan have a different problem: everyone thinks we're overdoing it because they refuse to consider the downside potential. I could go on forever about this topic. Since I said IAAL, I must say this is informational only, isn't legal advice, and I don't represent the reader as their lawyer.

mgkimsal 15y ago
Perhaps "Test Driven" or "Test First" contracting will become hip in a few years? Not necessarily actually testing (as in, let's go to court) but mapping out "given this scenario, x, y and z happen".
- r00fus 15y ago
  Having a contract validation test would be a worthy exercise for the party who didn't write the contract. This sounds like a great service opportunity for startup/employee contract lawyers... if contracts are like code, then a parser (or maybe legal code pretty-printer) could easily allow a skilled professional to sift through code. Even easier if the contract is standard for a large company. Any lawyers here care to pick my idea apart?