Far too many contracts are written in language that makes them difficult to read and hard to understand. If people are unable to understand a document that grants them specific legal rights and imposes certain obligations upon them, it is inevitable that one or more of the parties will fail to comply with it. It has gotten so bad that several states have enacted laws designed to improve legal documents by requiring drafters to adhere to a simple rule, to wit: Write them in plain English to make them understandable.
People frequently complain that lawyers make contracts and legal documents more complicated than they need be in order to force the average person to consult with an attorney. Job security might seem to be a perfectly valid explanation for the “wherefores” and “hereinafters” that populate many of the agreements being written by lawyers, but there are two things about the law and legal documents that could provide a better and less conspiratorial explanation.
“The sky is falling” even though it’s not
If Chicken Little were drafting a contract, you can bet that it would cover every contingency that the parties could possibly imagine along with a few that are probably so far-fetched as to be beyond the realm of ever happening. The theory is that no matter how slight the probabilities might be it is safer to address potential problems in an agreement rather than leave them out and be surprised when the sky tumbles to the ground.
Covering all possible contingencies is what lawyers do to protect their clients, but it is not the amount of information or content that makes some contracts difficult to read. Simplification of the language can be achieved while protecting the interests of a client. A contract that a client can understand saves time for everyone and helps to make compliance with its terms easier for all parties.
Everything old is new again
Most documents used to convey or protect interests in real estate use language that has remained relatively unchanged for more than 100 years. The words used in deeds, mortgages, easements and other real estate documents have been the subject of countless judicial opinions resolving court cases challenging their meaning and application.
The same is true for the language of wills and estate matters. Lawyers know what each word means because they can cite cases in which their meanings were questioned and resolved by a court. So, the language employed by attorneys is frequently the product of familiarity and consistency rather than a blind adherence to tradition.
Most lawyers will probably not put up too much of a fight if you suggest to them that plain English has a place in the drafting of legal documents. Some attorneys might not feel comfortable with the changes in the language, but there should be a middle ground that allows them to produce documents that are better written and easier to comprehend without abandoning their primary responsibility and obligation, to wit: Protecting the interests of their clients.