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In general, I find it crazy that we allow legal documents to be so complex. And not just complex, but comped to the point of being less clear than something sta

In general, I find it crazy that we allow legal documents to be so complex. And not just complex, but comped to the point of being less clear than something stated in simple, plain language. Legal matters, both civil and criminal, are so of the most important things in a person’s life. How do we allow language that is only decipherable by “experts”? Even if you understand the language, the “correct” interpretation of that language is governed by decades and centuries of inscrutable case law. To me, this is a tragedy. Laws and contracts should be made in simple language understood by a majority of the populace. People have a right the understand the rules that govern them.

matthewmcg 4y ago
In my experience there are three sources of complexity in contracts: (1) inherent complexity in the subject of the contract (2) a complex form being applied to a simple subject (3) bad drafting The first is sometimes unavoidable. For example, if you're drafting a loan document that has an interest rate based on a benchmark, it's probably not enough to reference that benchmark. You also want to include some provisions that will specify what happens if the benchmark ceases to be published. This kind of fulsome treatment makes contracts longer and more complex. The second is a a result of the way most lawyers work. It's far quicker (and therefore cheaper for the client, at least in the short term) to take an existing form and make changes to adapt it to a new situation than it is to create a bespoke contract. This reuse of forms propagates archaic language, needless "boilerplate" clauses, and the like. Many commonly encountered provisions are akin to junk DNA. They're included when the template is replicated but long ago ceased to have any function. Example: counterparts clauses or clauses "allowing" electronic signatures. [1] To me, the solution to this issue is to build contracts differently. Instead of starting with a recent precedent document and choosing "save as," we need to assemble them by carefully choosing well-drafted clauses from a library--think of a recipe for a convertible note that has "#include preemptive-rights" or something like that. Finally, drafting contracts well is a very specific skill. It's not a case of using the right "magic words." Rather, it's being able to describe the parties' bargain clearly and precisely. This isn't taught in most law schools, and most lawyers never bother to learn it systematically. Again, they're rushing to adapt existing forms that a colleague has blessed, and very shy about creating something new. I think most practitioners are aware of these factors but feel they can't really change them due to being caught in an hourly billing treadmill. In the article, Carolyn Levy says she couldn't' really tackle this problem until she went in house. That has been true for me as well. [1] https://www.adamsdrafting.com/counterparts-an-example-of-categories-of-contract-language-dysfunction/ https://www.adamsdrafting.com/counterparts-an-example-of-cat...
- nocoiner 4y ago
  But what I think you disregard is the practitioner’s preference to copy and paste arises because either that’s specific language that has either been litigated and a court has ruled on what those words mean (to that court anyway), or you’re trying to implement the same deal as all the other contracts with the same provision, so why write it differently? In the best case scenario, the new, carefully crafted language will be interpreted exactly the same way as the old language, and in the worst case scenario, it will be interpreted as meaning something totally different - because if the drafter meant to say the same thing as everyone else, why didn’t they just use the words everyone else uses?! I’m not particularly defending this state of affairs, but precedent counts for a lot - not just in common law legal decisions, but in contracting as well.

matthewmcg 4y ago

In my experience there are three sources of complexity in contracts: (1) inherent complexity in the subject of the contract (2) a complex form being applied to a simple subject (3) bad drafting The first is sometimes unavoidable. For example, if you're drafting a loan document that has an interest rate based on a benchmark, it's probably not enough to reference that benchmark. You also want to include some provisions that will specify what happens if the benchmark ceases to be published. This kind of fulsome treatment makes contracts longer and more complex. The second is a a result of the way most lawyers work. It's far quicker (and therefore cheaper for the client, at least in the short term) to take an existing form and make changes to adapt it to a new situation than it is to create a bespoke contract. This reuse of forms propagates archaic language, needless "boilerplate" clauses, and the like. Many commonly encountered provisions are akin to junk DNA. They're included when the template is replicated but long ago ceased to have any function. Example: counterparts clauses or clauses "allowing" electronic signatures. [1] To me, the solution to this issue is to build contracts differently. Instead of starting with a recent precedent document and choosing "save as," we need to assemble them by carefully choosing well-drafted clauses from a library--think of a recipe for a convertible note that has "#include preemptive-rights" or something like that. Finally, drafting contracts well is a very specific skill. It's not a case of using the right "magic words." Rather, it's being able to describe the parties' bargain clearly and precisely. This isn't taught in most law schools, and most lawyers never bother to learn it systematically. Again, they're rushing to adapt existing forms that a colleague has blessed, and very shy about creating something new. I think most practitioners are aware of these factors but feel they can't really change them due to being caught in an hourly billing treadmill. In the article, Carolyn Levy says she couldn't' really tackle this problem until she went in house. That has been true for me as well. [1] https://www.adamsdrafting.com/counterparts-an-example-of-categories-of-contract-language-dysfunction/ https://www.adamsdrafting.com/counterparts-an-example-of-cat...

nocoiner 4y ago
But what I think you disregard is the practitioner’s preference to copy and paste arises because either that’s specific language that has either been litigated and a court has ruled on what those words mean (to that court anyway), or you’re trying to implement the same deal as all the other contracts with the same provision, so why write it differently? In the best case scenario, the new, carefully crafted language will be interpreted exactly the same way as the old language, and in the worst case scenario, it will be interpreted as meaning something totally different - because if the drafter meant to say the same thing as everyone else, why didn’t they just use the words everyone else uses?! I’m not particularly defending this state of affairs, but precedent counts for a lot - not just in common law legal decisions, but in contracting as well.