6 ms·

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which impl

I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some. I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude. I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble. We try to create loopholes for our future selves.

swayvil 4y ago
I imagine that a contract must be written for the malevolent reader. The opposite of generous. Striving not to communicate, but to preemptively win every possible argument. An airtight construction. Quite different from a conversation. Well, an ideal conversation anyway. Internet conversations seem to be more combative every day.
- johndhi 4y ago
  What you're describing is more applicable to a motion filed in court (one party is in battle with the other and has no reason to be friendly to the other party at all). In the case of contracts, you're partially right, but it's more nuanced. The weird thing about contracts is that at the time they are signed, two parties need to agree with each other. If you're hiring a software vendor and I am your lawyer, I need to try to achieve two things at once: protect the company legally, but also sign the deal so that you can use the vendor. So I'm inclined to be somewhat friendly with the other side and to forego "air tight" legal defense of my side so that we can reach agreement. Unfortunately this process has a side externality for clarity: we negotiate little parts of a template and the way we do so probably doesn't jive all that well with the template language.
  - johndhi 4y ago
    Actually, clarification: what I'm saying applies to contracts between two sophisticated parties that are negotiating. If I'm Facebook and you're a user, there is no negotiation. So I try to make it as air tight as (legally) possible.
    - swayvil 4y ago
      Lucid and illuminating. Thanks.
pdonis 4y ago
> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. This doesn't make sense. The parties to the contract are presumably laypeople, and they have to understand it before they agree to it and sign it since one of the legal requirements for a valid contract is a meeting of the minds, meaning a common understanding between the parties of what each of them is agreeing to.
- johndhi 4y ago
  While the parties are usually laypeople, the drafters and readers of significance are almost always lawyers. If you decide to try to bring a claim against your mortgage lender, will you have a lawyer read your mortgage agreement before you file suit? Surely.
  - paulryanrogers 4y ago
    Then what hope is there for a layperson to do anything of significance without first having a lawyer vet the EULA? Such agreements are already absurdly long for some of the most trivial services or products. The answer cannot become "be a lawyer or rich enough to afford retaining one".
    - BurningFrog 4y ago
      There is no such hope, and that is the answer. Much of this country is set up by and for lawyers, and that has consequences.
      - johndhi 4y ago
        Agree. There is generally little hope of a layperson (or even a lawyer typically) of benefitting from a EULA. That said, laws separate from the contract might benefit you - if Microsoft's software kills your dog, you probably can't recover under the contract, but you might be able to win a lawsuit against them for breaking the law. Unfortunately that process is also costly and benefits greatly from lawyer involvement. It's a widely known problem that it's expensive to navigate the court system.
chaps 4y ago
Yeah. Law is weird and gets weirder when you scrutinize it as far as it can be scrutinized, which often happens in court. Not contract law, but I've been in two years of FOIA litigation to resolve a legal interpretation of "would" vs "could", and how that applies to a comma-separated list of categories. It's beyond maddening how long legal interpretation issues can go on for. It sucks, but sometimes the verbosity is needed to avoid these sorts of years-long fights.
- jimz 4y ago
  Considering that two years ago the Supreme Court ended up having to hold that the use of the indefinite article "a" in the phrase "a notice to appear" means a singular document that fits the definition of said notice instead of multiple notices sent piecemeal, even clear legal language can somehow wind up being challenged all the way to the top. The opinion, which actually makes for some delightful grammar shade from Gorsuch to Kavanaugh that's both utterly thorough and gratuitous at the same time, is quite the read, although the Supreme Court having to definitively state that "a means a" is almost a parody of itself. I wish you the best of luck with a word that's 5 times longer and features a slightly more complex definition than the meaning of "a". The opinion, btw: https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf
  - chaps 4y ago
    That's incredibly interesting, thanks for sharing and the hilarious good wishes :) Here's the IL Appellate court's opinion in my suit if you're curious - lots of discussion at the intersection of SQL injection and esoteric legal interpretation: https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-ba91-4b977f150c6f/file https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-... (We won the at the Appellate, but it's going to IL Supreme Court..)
  - pas 4y ago
    could you pinpoint where the grammar part is in the opinion? (tried searching for article, indefinite, notice, etc, but no luck :/) thanks!
lelandfe 4y ago
You're saying that "center-embedded clauses... passive voice structures, and non-standard capitalization" are actually of benefit to the clients?
- johndhi 4y ago
  I can think of three reasons why they might be: 1. Your contract is really confusing and looks like it benefits the counter party at face value, but actually benefits you upon close inspection. These things can help with that. It's "dark arts" to apply this technique, and there are various shades of gray, but it happens. 2. It might cost less to have your lawyer correct these things. If I (lawyer) correct them and the the other lawyer has to read them and debate them with me, we're spending client money. 3. "Non-standard capitalization" for most purposes is standard in legal contracts. As lawyers we are more used to non standard than standard. I don't know what center-embedded means, and for passive voice, I'd need to see the example. Passive voice can be helpful as ambiguity can pull more possibilities into play, if desired. E.g.: "there shall be no fraudulent use of party A's intellectual property" is broader than "party b shall not use party a's intellectual property."
dctoedt 4y ago
> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. That's partly true — but there's no reason a contract can't be written to be understandable by mere mortals. (I do a lot of contract drafting and have been teaching it to 3Ls for years.)
- johndhi 4y ago
  Cool! Let me ask you this, though: why shouldn't I be a L.O.A.D.? Also, who's the L.O.A.D. when I and a counterparty are editing a contract someone else drafted a template for five years ago? Am I expected to use my negotiating 'gun powder' to fix clarity issues? Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they?
  - dctoedt 4y ago
    > Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they? It depends on what's meant by "the best client representation" — is it "best" for the lawyer, or for the client? What clients want — pretty much universally — is a contract that: * sensibly and understandably handles the usual use cases; * addresses the important business risks; and * can be negotiated and signed quickly — in many cases that might be the client's most-important consideration, because the client is confident that the deal will go smoothly and/or that the business risks are low — and an understandable contract draft can be negotiated far more quickly than a draft that's loaded with "wall of words" provisions. (The old saying is that most contracts are signed and never seen again, either because the deal goes smoothly or the business people work out any difficulties between themselves without getting lawyers involved.) Almost never do clients give a [hoot] about maximizing their theoretical legal position for every conceivable set of circumstances — in fact, they're actively hostile to doing so if it means undue delay in getting the deal to signature. A relevant Dilbert cartoon: https://dilbert.com/strip/2008-08-28 https://dilbert.com/strip/2008-08-28 (Source: 40 years of law practice, including nearly seven years as vice president and general counsel of a public software company that I'd helped the founders to start.)
canjobear 4y ago
This is exactly the thesis that is refuted by the article. They find that the factors that make legal language hard to understand are the same factors that make any language hard for anyone to understand, for example long dependencies between related words in sentences. Nor do such constructions create ambiguities that might be useful later on: they just make the text harder for anyone to understand.

swayvil 4y ago

I imagine that a contract must be written for the malevolent reader. The opposite of generous. Striving not to communicate, but to preemptively win every possible argument. An airtight construction. Quite different from a conversation. Well, an ideal conversation anyway. Internet conversations seem to be more combative every day.

johndhi 4y ago
What you're describing is more applicable to a motion filed in court (one party is in battle with the other and has no reason to be friendly to the other party at all). In the case of contracts, you're partially right, but it's more nuanced. The weird thing about contracts is that at the time they are signed, two parties need to agree with each other. If you're hiring a software vendor and I am your lawyer, I need to try to achieve two things at once: protect the company legally, but also sign the deal so that you can use the vendor. So I'm inclined to be somewhat friendly with the other side and to forego "air tight" legal defense of my side so that we can reach agreement. Unfortunately this process has a side externality for clarity: we negotiate little parts of a template and the way we do so probably doesn't jive all that well with the template language.
- johndhi 4y ago
  Actually, clarification: what I'm saying applies to contracts between two sophisticated parties that are negotiating. If I'm Facebook and you're a user, there is no negotiation. So I try to make it as air tight as (legally) possible.
  - swayvil 4y ago
    Lucid and illuminating. Thanks.

pdonis 4y ago

> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. This doesn't make sense. The parties to the contract are presumably laypeople, and they have to understand it before they agree to it and sign it since one of the legal requirements for a valid contract is a meeting of the minds, meaning a common understanding between the parties of what each of them is agreeing to.

johndhi 4y ago
While the parties are usually laypeople, the drafters and readers of significance are almost always lawyers. If you decide to try to bring a claim against your mortgage lender, will you have a lawyer read your mortgage agreement before you file suit? Surely.
- paulryanrogers 4y ago
  Then what hope is there for a layperson to do anything of significance without first having a lawyer vet the EULA? Such agreements are already absurdly long for some of the most trivial services or products. The answer cannot become "be a lawyer or rich enough to afford retaining one".
  - BurningFrog 4y ago
    There is no such hope, and that is the answer. Much of this country is set up by and for lawyers, and that has consequences.
    - johndhi 4y ago
      Agree. There is generally little hope of a layperson (or even a lawyer typically) of benefitting from a EULA. That said, laws separate from the contract might benefit you - if Microsoft's software kills your dog, you probably can't recover under the contract, but you might be able to win a lawsuit against them for breaking the law. Unfortunately that process is also costly and benefits greatly from lawyer involvement. It's a widely known problem that it's expensive to navigate the court system.

chaps 4y ago

Yeah. Law is weird and gets weirder when you scrutinize it as far as it can be scrutinized, which often happens in court. Not contract law, but I've been in two years of FOIA litigation to resolve a legal interpretation of "would" vs "could", and how that applies to a comma-separated list of categories. It's beyond maddening how long legal interpretation issues can go on for. It sucks, but sometimes the verbosity is needed to avoid these sorts of years-long fights.

jimz 4y ago
Considering that two years ago the Supreme Court ended up having to hold that the use of the indefinite article "a" in the phrase "a notice to appear" means a singular document that fits the definition of said notice instead of multiple notices sent piecemeal, even clear legal language can somehow wind up being challenged all the way to the top. The opinion, which actually makes for some delightful grammar shade from Gorsuch to Kavanaugh that's both utterly thorough and gratuitous at the same time, is quite the read, although the Supreme Court having to definitively state that "a means a" is almost a parody of itself. I wish you the best of luck with a word that's 5 times longer and features a slightly more complex definition than the meaning of "a". The opinion, btw: https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf
- chaps 4y ago
  That's incredibly interesting, thanks for sharing and the hilarious good wishes :) Here's the IL Appellate court's opinion in my suit if you're curious - lots of discussion at the intersection of SQL injection and esoteric legal interpretation: https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-ba91-4b977f150c6f/file https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-... (We won the at the Appellate, but it's going to IL Supreme Court..)
- pas 4y ago
  could you pinpoint where the grammar part is in the opinion? (tried searching for article, indefinite, notice, etc, but no luck :/) thanks!

lelandfe 4y ago

You're saying that "center-embedded clauses... passive voice structures, and non-standard capitalization" are actually of benefit to the clients?

johndhi 4y ago
I can think of three reasons why they might be: 1. Your contract is really confusing and looks like it benefits the counter party at face value, but actually benefits you upon close inspection. These things can help with that. It's "dark arts" to apply this technique, and there are various shades of gray, but it happens. 2. It might cost less to have your lawyer correct these things. If I (lawyer) correct them and the the other lawyer has to read them and debate them with me, we're spending client money. 3. "Non-standard capitalization" for most purposes is standard in legal contracts. As lawyers we are more used to non standard than standard. I don't know what center-embedded means, and for passive voice, I'd need to see the example. Passive voice can be helpful as ambiguity can pull more possibilities into play, if desired. E.g.: "there shall be no fraudulent use of party A's intellectual property" is broader than "party b shall not use party a's intellectual property."

dctoedt 4y ago

> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. That's partly true — but there's no reason a contract can't be written to be understandable by mere mortals. (I do a lot of contract drafting and have been teaching it to 3Ls for years.)

johndhi 4y ago
Cool! Let me ask you this, though: why shouldn't I be a L.O.A.D.? Also, who's the L.O.A.D. when I and a counterparty are editing a contract someone else drafted a template for five years ago? Am I expected to use my negotiating 'gun powder' to fix clarity issues? Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they?
- dctoedt 4y ago
  > Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they? It depends on what's meant by "the best client representation" — is it "best" for the lawyer, or for the client? What clients want — pretty much universally — is a contract that: * sensibly and understandably handles the usual use cases; * addresses the important business risks; and * can be negotiated and signed quickly — in many cases that might be the client's most-important consideration, because the client is confident that the deal will go smoothly and/or that the business risks are low — and an understandable contract draft can be negotiated far more quickly than a draft that's loaded with "wall of words" provisions. (The old saying is that most contracts are signed and never seen again, either because the deal goes smoothly or the business people work out any difficulties between themselves without getting lawyers involved.) Almost never do clients give a [hoot] about maximizing their theoretical legal position for every conceivable set of circumstances — in fact, they're actively hostile to doing so if it means undue delay in getting the deal to signature. A relevant Dilbert cartoon: https://dilbert.com/strip/2008-08-28 https://dilbert.com/strip/2008-08-28 (Source: 40 years of law practice, including nearly seven years as vice president and general counsel of a public software company that I'd helped the founders to start.)

canjobear 4y ago

This is exactly the thesis that is refuted by the article. They find that the factors that make legal language hard to understand are the same factors that make any language hard for anyone to understand, for example long dependencies between related words in sentences. Nor do such constructions create ambiguities that might be useful later on: they just make the text harder for anyone to understand.