There’s no good reason for lawyers to keep using impenetrable legalese

Back when I first became a lawyer, a buddy of mine asked me to review a contract for him. He was a songwriter. He wanted me to go over a contract he received from a music publishing company that wanted to sign him. Eager to help my friend, I gladly accepted.

We first met when I was working for my friend’s former manager. I had the typical intern tasks, such as chauffeuring the company’s clients to and from studio sessions, ensuring we were on schedule, and making store runs. But over time, I began performing the atypical task of explaining contract terms to clients.

You see, the company had a lawyer, but she was hired by the manager. No matter what the lawyer said, clients weren’t always comfortable that she was representing their best interests. As many of them couldn’t afford their own lawyer, their only option was to ask someone that they trusted. As I was the person who spent the most time with many of them (including my friend), a certain trust developed naturally.

I wasn’t a lawyer at the time, but I knew enough to be dangerous. I was interested in the contracts because they determined how/when we got paid. I understood the overarching concepts. I read books to better understand. I compared contracts provided to our most successful clients against those provided to our clients who were “in development.” Eventually, it got to the point that my employer was even asking me to explain contracts. As he would say, “I’m not reading all of that. You’re sitting right here. Plus, she would bill me.”

I enjoyed being of service in this way. It made me feel needed. But the work was not without frustration. Often, I would have to read paragraphs two or three times to understand them. These repeated readings would often cause me to question my own intelligence.

Assignor. Assignee. Designee. Hereunder. Herein. Theretofore. Sentences that go on for half a page, containing six commas and multiple parentheticals. Contracts that state a right under the agreement in one paragraph, and then severely limit that same right two paragraphs (or pages) later.

I wondered why these contracts had to be written in such a convoluted way. It made no real sense to me that someone would write a contract that is supposed to explain everyone’s rights and duties in such a way that everyone could not easily read the contract and understand what their rights and duties are. I mean, they have to sign this thing. Doesn’t it benefit all sides to fully understand what it says?

Cognitive scientists at the Massachusetts Institute of Technology believe they have found the answer to my pre-law-school musings. They, too, questioned why legal documents were written in a style that made them so hard to understand. They, too, noted the convoluted language that is contained within these documents. That language is known as “legalese.”

The scientists asked roughly 200 nonlawyers to write two types of texts. First, they were asked to write laws prohibiting crimes such as drunk driving, burglary, arson, and drug trafficking. Second, they were asked to write stories about those crimes. The researchers found that even these nonlawyers used legalese when writing laws. However, they used much plainer English when they wrote stories.

From these results, the scientists concluded that legalese is used to convey a sense of authority to readers. The scientists likened legalese to magic spells that use special rhymes and antiquated terms to signal their power. The study’s senior author said, “People seem to understand that there’s an implicit rule that this is how laws should sound, and they write them that way.”

Though I was disappointed by the study’s results, I was not surprised. It seems to me like the scientists found that we use legalese because that is simply “what lawyers do.” We use it now because those before us used it. Said simply, legalese is tradition. And the field of law, as much as any other, is steeped in tradition.

I respect tradition. Transmitting customs or beliefs across generations strengthens us by reminding us of what those before us overcame so that we may exist. Engaging in longstanding customs pulls us out of our own self-centered perspectives and forces us to consider how there was a time before us and there will be a time after us. In that way, tradition can be invaluable.

Still, tradition loses its value when it becomes a barrier to our moving forward. In the same sense that it can strengthen us by linking us to the past, it can weaken us when it operates to impede our progress toward a better future. In other words, not all traditions should be respected. Especially those which hold us back. Specifically, those which hold us back.

Legalese is a tradition which needs to be sacrificed upon the altar of progress. It holds us back. Research has shown that even lawyers don’t like legalese. Yet, because of tradition, we use it anyway.

The answer to what sacrificing legalese looks like is contained within the MIT study’s results. When people wrote laws, they used legalese. When they wrote stories, they use plain English.

The difference is the focus of the writer. When writing laws, the writer’s focus is on himself. He wants readers to sense his authority. When writing stories, the writer’s focus is on the reader. He wants the reader to understand throughout the journey.

The field of law must shift its focus from itself to its readers. Laws, contracts, motions, etc. should no longer be written with the intention of conveying authority or “sounding like a lawyer.” Instead, these things should be written with the intention that anyone, including nonlawyers — specifically nonlawyers — will understand throughout the journey.

Laws are meant to apply to us all. It should be obvious that we act counter to this intention when we draft laws in such a way that we are not all able to understand them. “This is the way that we have always done it” is not an excuse for continuing to do a nonsensical thing.

A lawyer’s value is not in the ability to understand and use legalese fluently. Our value is, or rather it should be, in our knowledge of the law and our ability to employ that knowledge for the benefit of our clients. We do not lose our value by using words that laymen understand in our practice. We increase it. No matter how the law is written, it will always be vast and complex. Yet, as a quote often attributed to Albert Einstein goes, “The definition of genius is taking the complex and making it simple.”

When I received my buddy’s contract, I redlined it like a madman. I spent hours rewriting entire sections into everyday language that I thought could be easily understood. I excitedly sent my draft back to the publishing company’s lawyer. A week later I got an email back. It was another copy of the original agreement. The email had one sentence: “Do you have any real substantive changes?” I called my buddy that day and explained the contract. I replied to the email the following day, “No, I guess I don’t.”

Eric Foster is a lawyer in private practice and columnist for The Plain Dealer and cleveland.com.