Why are legal documents and contracts hard to understand?

[bonruiz]

Sir, I hope you can enlighten me on why legal documents and contracts use too many unnecessary words that are not direct to the point and hard to understand?

Is this a lawyer's standard procedure so he can be the only one who can interpret and make money out of it?

Most legal contracts and documents are too wordy, not direct to the point and confusing.( terrible grammar )
Is this standard practice in law? Why can't they make it simple and precise?

Gratefully yours,
Henry Bon Ruiz
bonruiz@yahoo.com

  

[Joe Carillo]

Your first question is why legal documents and contracts use too many unnecessary words, words that you say are not direct to the point and are hard to understand.

The answer is that these legal documents and contracts use a language that’s called legalese—the jargon or specialized language that lawyers use to communicate with fellow lawyers and other members of the legal community, particularly justices, judges, and paralegals. This language presumes that the target audience—whether readers or listeners—is adequately knowledgeable with legal concepts and the legal system. This is why to laypersons not equipped with or are not privy to this knowledge, legalese would read and sound much too wordy for comfort and, very often, beyond understanding and comprehension.

Your next question is whether the use of legalese is a standard procedure of lawyers so that only they can interpret the document or contract and thus be able to make money from those who need or have use for those documents and contracts.

I think that this is a very harsh assessment of the motivation of lawyers in writing or speaking in legalese. Here, from a lawyer who writes under the username WiseGeek, is I think a fair, levelheaded justification for legalese:

In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren’t familiar with the law, as ordinary words can have a different meaning in a legal context. For example, seemingly redundant phrasing actually isn’t, when the legal meanings of the phrase are considered.

In contrast, here’s a more candid justification for the complexity of legalese from a lawyer who blogs under the username SoMeLaw Thoughts:

Here’s one deep, dark secret about lawyers—we see risk everywhere. I can look at a picture of a man on a sidewalk and come up with a dozen potential lawsuits without batting an eye. And that’s before this hypothetical man crosses the hypothetical street. We lawyers spend years reading the most ludicrous cases you can imagine that involve chain reactions of people jumping onto moving trains, dropping bundles of fireworks that explode, and a concussive wave that tips over a large scale injuring a woman nearby (actual, famous case). It’s our job to see the worst potential outcome and help our clients avoid it.

So when a client comes to an attorney and says “Hey, can you draft up some terms for my business so that we’re protected from lawsuits?” then the lawyer’s mind starts spinning like a rickety travelling carnival ride that was installed without inspection, has no safety restraints in the cars, and is operating at twice the recommended speed. Our minds are now racing to give our clients the best possible defense to a future lawsuit.

That’s an important distinction—giving a defense to a lawsuit rather than preventing a lawsuit. Lawyers know that anyone can be sued by anyone else for anything. The question is whether the lawsuit has merit and will stick. Good terms and conditions will give you plenty of ways to dismiss the lawsuit with as little effort as possible, but you’ll still have to deal with the lawsuit. So that’s why these terms and conditions can run so long—they are trying to arm the company for a war that might come from the land, sea, air, space, other dimension, and in the case of some special litigants, parallel universes where your company is secretly in league with paranormal forces and therefore should pay the plaintiff one billion dollars. Drafting these terms are like packing for a trip when you have no idea if you’re going to Hawaii or Antarctica and you don’t know how long you’ll be gone…

Now, your third question is whether it’s standard practice in law to make most contracts and documents too wordy, not direct to the point, confusing—and also to have terrible grammar.

I doubt if it’s standard practice in law to deliberately and viciously make contracts and documents very wordy, not direct to the point, confusing—and also to make their grammar terrible. Legalese is, I think, simply the present-day outcome of centuries of overcareful, overzealous, overprecise, overbearing, and overwrought formulation, implementation, interpretation, and application of the law in evolving societies. It’s an arcane, stultifying language that generations of lawyers and other legal practitioners have not seen fit or bothered to simplify for clarity of expression and for easier understanding by laypeople. Indeed, for no better reason than convenience, modern-day legal practitioners still resort to and freely use many of the English-language legal templates and language quirks that date back to Victorian England and even earlier. They do so as if totally oblivious of the evolution of the English language in our Telecommunication Age towards accuracy, brevity, and clarity. I think this is precisely why you’ve gotten the wrong impression that most contracts have terrible English grammar. Actually though, on close examination, their English grammar would most often be aboveboard, except that their syntax and construction are those of a long bygone era, when those documents were still laboriously composed by longhand using quill and ink. In a very real sense, then, most contracts and legal documents today are composed by lawyers as if they are living in a time warp, making them—both the documents and the lawyers—sound terribly outdated, even archaic.

Your last question is whether it’s possible to make contracts and legal documents simple and precise. My personal answer is that, particularly in a democratic country like ours, it’s not only possible but highly desirable. In recent years, in fact, there has been a growing movement in North America and in the United Kingdom to use plain and simple English not only in contracts and legal documents but also in court litigation and in legislation, the better for laypeople to understand, appreciate, and follow the law as well as to assert their rights and fulfill their responsibilities as members of society. Read, for instance, “Lawyers Should Use Plain Language,” an article by Carol M. Bast in the Florida Bar Journal for a comprehensive discussion of the plain language trend and legislation in the United States.

Let’s just hope that the plain language movement and legislation will soon catch on in the Philippines as well.

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For a much richer appreciation of how legalese differs from plain and simple English, read:
“A Visit from St. Nicholas” (’Twas the Night Before Christmas), a poem by Clement Clarke Moore
then compare to:
“The Night Before Christmas, Legally Speaking” (Parody)

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NOTE (October 24, 2017): The Forum is reposting this 2014 essay as part of a 4-part series on the various language registers of English. The next three essays will be featured consecutively on October 26 (Thursday), October 28 (Saturday), and October 29 (Sunday).

[Gerry T. Galacio]

[1] For more information about Plain English (also known as Plain Language, Plain Writing, Plain Talk, etc.) and Plain Language initiatives in the Philippines, please surf to my Legal Updates blog post at http://famli.blogspot.com/2011/04/what-is-plain-english-plain-language-or.html

[2] What is legalese?

"Legalese is a style of writing used by lawyers that is incomprehensible to ordinary readers." (from Canadian Bar Association and Canadian Bankers Association 1990 Joint Committee Report “The Decline and Fall of Gobbledygook: Report on Plain Language Documentation”)

"We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds our readers. The result is a writing style that is: wordy, unclear, pompous, and dull." (Professor Emeritus Richard Wydick, UC Davis School of Law, in his book “Plain English for Lawyers”)

"Legal sentences tend to be long and flabby. More generally, legal writing tends to be poorly organized and poorly formatted. And in its effort to be precise and exhaustive, it becomes excessively detailed and too often sinks into redundancy, ambiguity, and error. The result is legalese — a form of prose so jumbled, dense, verbose, and overloaded that it confuses and frustrates most everyday readers and even many lawyers." (Prof. Joseph Kimble, president, Thomas M. Cooley College of Law, Michigan, USA from his book “Lifting the Fog of Legalese”)

"Four elements of legalese: formalisms, such as comes now; archaic words, such as hereby; redundancies, such as each and every Latin words, such as per curiam" (by Prof. David Mellinkoff, UCLA School of Law, in his book “Legal Writing: Sense and Nonsense” 1982)

"Legalese violates nearly every principle of good writing." (by Mark S. Mathewson, Director of Legal Publishing for the Illinois State Bar Association, Michigan Bar Journal January 2003)

[3] What is good legal writing?

"Good legal wring should not differ, without good reason, from ordinary well-written English....In short, good legal writing is plain English." (Prof. Wydick)

"If it’s bad writing by the standards of ordinary English, it is bad legal writing. If it’s good legal writing by the standards of ordinary English, it is more likely to be good legal writing." (Prof. Mellinkoff)

[Joe Carillo]

Mr. Juanito T. Fuerte, who describes himself as a religious follower of the Forum, e-mailed this response today to BonRuiz’s posting on legalese:

March 20, 2014

Hi, Joe,
 
Having lived for a few decades in the United States where most people (including lawyers) write the way they speak, I can understand BonRuiz and agree with him when he said that the English of lawyers in the Philippines has “too many unnecessary words that are not direct to the point and are hard to understand.” Unlike in the States where even someone with no education higher than high school (like myself) can readily understand what lawyers write without having to pause to consult the dictionary or to read the material over and over again, here in the Philippines it becomes a necessity for nonlawyers to take a long pause and painstakingly analyze the words or sentences in their legal documents so as to understand or decipher what is being said.

Over the years that I lived in the States, I had several powers of attorney, wills, and other legal documents prepared for me by American lawyers during the four times that I bought and sold a house in those years. Not once did I find it hard to read and understand what the pertinent documents were saying. But here in the Philippines, when I hired a lawyer to handle the sale of a lot owned by my deceased wife, I had to ask him to summarize and interpret for me—in plain English or Tagalog—what the transaction documents he had prepared meant. This was because reading and trying to understand them almost made me feel like going through a maze. Of course, it also dawned on me that we Filipinos do have a penchant for using high-sounding words instead of everyday, simple ones. Since coming back home three years ago, in fact, I have been exposed to some new English words like the following: “venue” (place), ”ambiance” (atmosphere), “signage” (signs), “wastage” (destruction)), “sans” (without), etc. Why these words instead of everyday words? My guess is, it’s because one who uses them feels sooo...cool, sooo...elite, and sooo...impressive! Worse, I also oftentimes run across words like “senatoriable,” “presidentiable,” and “masteral”—words that are not even in the dictionary!  

This is not to criticize our lawyers, most of whom are brilliant practitioners of their profession who can stack up any time against their counterparts anywhere, including those in the U.S. But in this age of fast food and instant communications, perhaps it’s time for them to part with their old ways of writing or saying things, simplifying legal documents and making their English less complicated.  

By the way, when, say, a certain a legal expert describes the result of a certain finding or court ruling as “final,” is it necessary to make “and executory” follow the word “final” even when the finding or ruling is declared to be final on the same date it was issued without any further stipulation? I ask this question because my understanding of the word “executory,” as defined by Merriam-Webster’s Dictionary, is “designed or of such a nature as to be executed in time to come or to take effect on a future contingency.” Therefore—but please correct me if I’m wrong—when used after the word “final,” and if the date of effectivity is other than the date when it was declared ”final,” the words “and executory” should specify the future contingency that would trigger the effectivity of the finding or ruling. By the same token, in the absence of any contingencies as to how or when the finding or ruling would take effect, the declaration of a finding or ruling as “final” should no longer be followed by the words “and executory” (as what most legal experts often do). What do you think?  

I thought I should let you know about these thoughts of mine, Joe. I’ve learned a lot about proper English usage from the days of your “English Plain and Simple” column in The Manila Times, and I’m now also a religious follower of your English Forum because I know that I have just begun to scratch the surface and that there’s a lot more for me to learn. I’m sure a lot of other Forum members would say the same thing. So, as my old neighbor in Virginia would say, “Keep plugging!”

All the best,
Juanito T. Fuerte

[Gerry T. Galacio]

A "final judgment" is different from a "final and executory judgment."

A "final judgment" becomes a "final and executory judgment" only when the period for filing a motion for reconsideration or an appeal lapses with the losing party not filing anything.

In civil cases, the trial court sends copies of the judgment to the parties by registered mail. Once the court verifies from the return card that the period for filing a motion for reconsideration or an appeal has lapsed, then the judgment is recorded ("entered") in the Book of Judgments. The court issues a Certificate of Finality upon request. The winning party then files a Motion for Execution (with the Certificate of Finality attached to it).

For more information about legal procedures in the Philippines, please surf to my Legal Updates blog post at http://www.famli.blogspot.com/p/downloads.html