In a previous article I have set out the very real benefits of using plain English contracts.
In this article I aim to give some tips on how to actually achieve plain English in your contracts.
For some especially dyed-in-the-wool lawyers and commercial officers, this will be tough reading, and I predict a few moments of knee-jerk resistance, but trust me: it will make your drafting better.
In no particular order, here are my top 10 tips for clearer legal writing.
Learn how to write in plain English generally (not just for contracts). Far cleverer people than me have already published guidance on this. Here is a good starting point.
Focus your definitions. When mentoring more junior lawyers, I would always (probably somewhat pompously) proclaim that good contract drafting starts with getting the defined terms right. I stand by that, to some extent – good defined terms bring a lot of clarity to a contract and help to avoid annoying repetition. The exercise of thinking about what you need to define also helps you to focus on the different ways in which your drafting could be misconstrued, which in turn helps to drive certainty.
When you’re writing for a non-legal audience, though, it’s not always immediately obvious that all those title-case words and phrases have a special meaning (often a meaning which is different to the one you might expect). Non-lawyers sometimes emulate this feature without fully understanding what it means (often just putting any words they think are Really Important in title case – see pretty much any of Trump’s tweets for examples of this).
This means that you need to keep defined terms to a sensible minimum, and be very clear in the wording preceding your list of defined terms that when the relevant words and phrases are in title case, they have a special meaning.
I might do a deeper dive into this tip in a future article.
Personalise where possible. Think especially about the defined term you use to define each party to the contract. If appropriate (e.g. when drafting an organisation’s standard terms), use “you” and “your” to refer to the other party. Failing that, use a tailored shorthand (e.g. “Acme” for “Acme Incorporated”). This makes for a more natural read than more generic terms to describe the parties (like “Party 1”, “the Buyer”, “the Sub-Contractor” and so on), where the lay reader will often have to constantly remind themselves which name refers to which party.
Use your interpretation clauses to reduce repetition. For example, a simple clause stating that words following “including” are only illustrative and do not change the sense of the wider clause will save you having to write “including but not limited to” every time. However, don’t overdo it on your interpretation clauses – see tip #5 below.
Watch out for legal redundancy. This is where a piece of drafting is blindly included because it’s the done thing, but it doesn’t really add anything, legally speaking. The interpretation clauses in many contracts can be a rich source of this sort of unnecessary drafting. Those clauses you often see that say “the singular includes the plural and vice versa” or “the masculine includes the feminine and vice versa”? Not needed in the UK – section 61 of the Law of Property Act 1925 already applies these rules. (For the pedants out there, this Act doesn’t deal with the neuter gender, but how likely is it really that a dispute will arise over whether or not a clause that refers to a company as “he” actually applies to that company?)
So-called “boilerplate” clauses (which usually appear towards the end, and tend to be much the same from one agreement to another) are another rich source of clauses which add little to nothing, legally speaking.
Applying this tip does require a proper knowledge of the law, which is perhaps why so many legal redundancies still feature in so many contracts – they’re basically a comfort blanket for lawyers who aren’t confident enough to know what the law does or doesn’t do in the absence of the clause in question.
Avoid redundancy of language. Contracts tend to be littered with examples of unnecessary repetitions and synonyms, or just commonly-used but wordier-than-necessary phrases. For example, it is extremely rare to find cases where the following common phrases can’t be more simply stated as shown below:
“each and every” could just be “each”
“in the event that” could just be “if”
“null and void” could be just “void” (although, arguably, that is legal jargon which might be better replaced with something like “has no legal effect”)
“withheld or delayed” could just be “withheld”
Some more examples (with a bit of an American bias) can be found here.
Reduce your reliance on cross-references. Sometimes the most efficient drafting approach is to cross-refer to a different clause, but this needs to be balanced against how much skipping back and forth it forces the reader to do. Yes, the price of reducing cross-referencing might be to increase the amount of repetition, but that may well be a price worth paying if it makes the document easier for a lay reader to understand.
Reduce the number of “levels” in your clauses. Once you get to clause 5.1.2(b)(iii)(A), you’ve lost your lay reader (and often your lawyer as well) long ago. In my experience, it’s rarely necessary to go past two levels of clause numbering – in almost every case where it seems necessary, the solution is to just start another clause.
This may seem like a small change, but it makes a big difference, especially to people who haven’t spent their careers dealing with complicated contracts. It also has the added bonus of making the contract easier to discuss orally when you’re negotiating it or talking through it with others – “clause 5(a)” is much easier to say out loud without losing people than “clause 5.1.2(b)(iii)(A)”.
Run a mile from archaisms and Latin. Yes, you might know the meaning of “ejusdem generis” and “prima facie”, but peppering your legal drafting with phrases like that doesn’t make you look big and clever – quite the opposite, in fact. The same goes for using terms like “hereinbefore” and “aforementioned”, which often comes from a misguided attempt to seem more authoritative.
In fairness, some Latin terms are useful shorthand – “mutatis mutandis” might be one example of this – but any convenience is surely outweighed by the resulting impenetrability for the lay reader.
Take a fresh look at your stock phrases. There are certain turns of phrase which become so ingrained for the legal draftsperson that it becomes easy to take for granted – wrongly – that they are commonly understood outside of legal circles. I used to make heavy use of “provided that” in my contract drafting, but I’ve just about managed to kick that habit (which also had the further nasty side-effect of making sentences even longer than they need to be). Even terms like “subject to” and “notwithstanding” are ripe for misunderstanding (including by lawyers) and can be drafted more clearly (if not always more concisely).
So, those are my top tips for plain English legal writing – nothing that profound, perhaps, but hopefully useful anyway. Do you have any of your own which I haven’t covered above? Perhaps there is something else which has always annoyed you about how legal documents are written that has always baffled or annoyed you? Please feel free to comment or get in touch if so.
Whether you use these tips to completely overhaul your contracts, or just to drive a bit more clarity into your drafting, I promise you that it will improve your drafting as a whole – and will make your contracts clearer, more precise and easier to work with.
© 2018 Candid Commercial Limited
We at Candid Commercial are currently developing a suite of plain English contracts covering the most common commercial agreements which businesses (and other organisations) use. If you’re interested in getting free-of-charge access to the beta version of one of these, or just want to know more, please do drop us a line.