In case you missed it, Kanye West is back grabbing headlines. When I got a text in the group chat Monday night that Kanye had released a campaign ad I decided to check it out. After watching the ad on his Twitter page, I figured I’d look around for a bit. As I enjoyed my trip through some of Ye’s thoughts, I came across this gem:
I don’t agree with everything Kanye says (who does?), but this tweet was spot on. I’ve drafted, reviewed and negotiated my fair share of contracts across a wide range of industries. Contract drafting is actually one of my favorite activities as a lawyer. I love the feeling of knowing that the agreement I’m drafting will help form the foundation for my client’s future success. But when I’m done drafting an agreement, no matter how proud I am of my work, there is one thought that often troubles me. My client probably won’t understand half of what I’ve written.
I don’t know if other lawyers are troubled by the same thought. I’d like to think I’m not the only one. It’s our job to serve our client’s best interests. So why do we continue to create contracts they can’t read and understand? Here are my thoughts on that question, and why it needs to change.
Why Do Lawyers Like to Use Language No One Else Understands?
There are many potential answers to this question. The first is, thats how it’s always been done. For decades, lawyers have used the same legal jargon when drafting contracts. Terms like “hereinafter” and “notwithstanding”, have become so common place that lawyers rarely question whether they could be replaced by more common language.
Another potential explanation is that lawyers want to write and sound like lawyers. There is a psychological aspect to writing in legalese that shouldn’t be overlooked. As I mentioned above, lawyers have been writing contracts filled with abstract legal jargon for generations. Not only is it comfortable to stick to the beaten path, but there is also a certain amount of prestige that comes with being able to decode dense contract language that non-lawyers don’t understand.
Finally, I think we have to consider a lawyer’s mindset as they draft an agreement. Lawyers are risk managers. For the most part, everything we do is with the worst case scenario in mind. So we tend to draft contracts with litigation on our minds. Therefore, the audience we are writing for consists of lawyers and judges, instead of our clients.
To be clear, there are benefits for lawyers who uphold these traditions. The use of legalese has created a language of its own that lawyers and courts understand. Many lawyers feel that this language grants a greater level of certainty. And of course, sticking with what has worked means you can avoid the added scrutiny that comes with being different.
However, none of these benefits are passed on to the people that truly matter — our clients.
The Benefits of Plain Language Contracts
Lawyers are not the only ones who should understand what is in a contract. When it comes to executing an agreement, the most important people involved are the ones signing it. It should be written with them in mind. That means the contract should reflect their agreement in words they can understand. I have come to this conclusion not only based on my desire to place client needs above those of attorneys, but also because of the practical benefits demonstrated by the use of plain language contracts.
In 2014, GE Aviation undertook an effort to simplify its contracts after recognizing that the complexity of its written agreements was causing negotiations with customers to drag on for months. Their goal was to consolidate 7 complex agreements, into 1 contract template simple enough for a high-schooler to understand. Though the effort was time consuming, it was ultimately worth it. The plain language contract resulted in significant cost savings, and happier customers.
In his book, Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law, Joseph Kimble cites no less than 50 studies demonstrating the business case for plain language contracts. Plain language contracts can boost efficiency for both lawyers and businesses. Businesses can spend less time administering agreements, and more time engaged in revenue generating activities. And because contract obligations are clearer, they are easier for people to follow. Furthermore, attorneys can spend less time deciphering contracts, and more time providing legal advice that drives growth.
For me though, the case for plain language contracts still comes back to one question — what do client’s want? Putting myself in their shoes, I would want clear and transparent agreements. I would want to know what the contract says without having to rely on my lawyer to translate. With that in mind, I feel obliged to give my clients what I would want if I were in their shoes, whenever possible.
Plain Language Contracts for All
In the end, contracts that use plain language benefit everyone involved. After the initial investment of time and energy to create new templates, agreements written in plain language will save everyone time, money and stress. Furthermore, lawyers who make this change will reap the benefits that come with greater alignment with the interests of their clients.
Drafting plain language contracts is harder than it may sound. It’s never easy to change old habits and do something unfamiliar. This is especially true for habits that have worked for generations of lawyers. However, we have the ability to make the contracting experience more friction-less, without sacrificing on the quality of our work. We have to understand that the long-term gains are worth the short-term pains.
Like most lawyers, I am guilty of using too much legal jargon in my contracts. But I’m happy to commit to improving upon this habit, and I challenge my colleagues to do the same for the sake of our clients and the future of our profession.