CONTRACT LEGALESE REDUCTION TIPS

John E. Miller 

Introduction:

Legalese is defined as language containing an excessive amount of legal terminology or of legal jargon. [1] 

Just consider how the story of  “The Night Before Christmas” would read if it were written in legalese:

THE NIGHT BEFORE CHRISTMAS in Legalese (Author unknown)

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter "Claus") would arrive at sometime thereafter. The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as ("I"), being the joint-owner in fee simple of the House with the party of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter "the Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8)
reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter "the Deer"). (Upon information and belief, it is further asserted that an additional co- conspirator named "Rudolph" may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and wilfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts.(Said items did not, however, constitute "gifts" to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect.  [2]

There is a reason, or at least an argument, supporting the use of "legalese". The idea is that first of all, contracts and other legal writings are meant for attorneys, and not for the general public. Attorneys understand the Latin phrases and complex (convoluted) sentences. [3]

Secondly, the argument goes that some of the so called "boiler plate" language is verbal shorthand for expansive legal concepts. Attorneys know that each single phrase has been interpreted in a certain way. [4]

The problem with that reasoning and the arguments in favor of legalese is that others frequently must read, sign, and be bound by contracts in their everyday lives. Car loan, rental agreement, lease, cell phone contract, mortgage, employment contract, TV contract, HOA rules and bylaws, internet contract, and on and on. On top of that there are laws, rules, and ordinances that must be followed -- also sometimes written in arcane language. [5]

It should be noted that “terms of art,” however, are not considered legalese. Terms of art are terms that have acquired a meaning that the legal profession generally accepts. By using a term of art, such as “stare decisis”, “indemnity”, “force majeure”, and “tortious interference with a contract”, legal writers eliminate the need to use a lengthy phrase in ordinary English. [6] Terms of art make up a negligible portion of legal documents. Some think that technical terms and terms of art comprise less than 3% of a document. [7] Others think they make up less than 2%. [8]

 

In my contracts management career, I have planned, designed, drafted, reviewed, revised, negotiated, modified, and interpreted many contract clauses that appear in written agreements. In order to systematically and thoroughly reduce the amount of unnecessary and confusing legalese in such contract clauses, I have, over the years, developed a list of tips to reduce contractual legalese in agreement clauses.  I routinely use the following list of tips as a practical and efficient legalese reduction checklist:

 

First, Always Check These Eight Major Elements:

"Legalese has four elements, as defined in David Mellinkoff's Legal Writing: Sense and Nonsense: formalisms, such as now comes; archaic words, such as hereby; redundancies, such as each and every; and Latin words, such as per curiam." [9]

 

 "There are also four elements of poor writing in general, which are sometimes called gobbledegook: long sentence length, weak passive verbs, wordy phrases and unnecessarily long words. If you pick up any English textbook, you will see, 'Write under rather than pursuant to. Write if rather than in the event of. But when you look at documents written by practicing lawyers or even at state statutes, all you see is pursuant to." [10]

 

 "If lawyers would eliminate the legalese and the gobbledegook from their writing, they would eliminate eight major elements of unclear writing. Show me a document from which those eight elements have been eliminated, and I will show you a clearly written document. “ [11]

 

Next, Use Plain English:

 

Periodically in Texas they have “ Legaldegook Awards" for examples of written excess in contracts and other documents. "We're looking for delightfully atrocious pieces of legal writing," said Bryan Garner, a Dallas attorney who leads the Plain Language Committee of the State Bar of Texas.[12]  Recently they made the "Foggy Footnote Award" for the use of the following actual clause:  "Non-contingent, conceptual, semantic connectedness is an absolutely necessary condition for sameness of meaning. If two terms meant the same thing, then normal language users find themselves inclined to perceive a necessary, conceptual, unbreakable connection between the two things. Frequent correlations are insufficient to prove connections of meaning."  [13]  Uh huh.

 

However, there are some good examples of limiting legalese and using plain English that have been offered by the Plain Language Committee. For example, in 1848 Timothy Walker, an Ohio lawyer who started the Cincinnati Law School, wrote that a lawyer’s way of stating the plain English version of - "Have an orange" – probably would result in the following: "I give you all and singular my estate and interest, right, title, and claim, and advantage of and in that orange, with all its rind, skin, juice, pulp, and pips, and all right and advantage therein, with full power to bite, cut, suck and otherwise eat the same, or give the same away, as fully and effectually as I ..." [14]

Review These Forty Other Legalese Checklist Issues:

1. Be precise (accurate, complete, and exact), clear, specific, and focused.

2. Balance precision with simplicity.

3. Avoid jargon.

4. Use short sentences of less than 25 words.

5. Prefer short words to long words (avoid unnecessarily complex).

6. Avoid double negatives.

7. Keep the subject and verb together.

8. Use active not passive voice (“Buyer terminated the contract”... not … “contract was terminated by buyer”).

9. Boil down a sentence to its essential point.

10. Use kernel words, not long derivatives (“state”... not ... “make a statement”).

11. Eliminate redundancies (“past history,” “future plans”).

12. Avoid doublets/triplets (“right, title, and interest”).

13. Cut unnecessary preambles (“it is important to note”).

14. Minimize prepositions (“of,” “in,” and “by”).

15. Avoid noun pile-ups (“DOC computer hardware component regulation”).

16. Use parallel structure (“proposing, drafting, and negotiating contracts”).

17. Careful of “will,” “shall,” “must,” and “may” (will/shall/must = command; may = permissive).

18. Avoid “and/or.”

19. Avoid here-/there- words (herein, hereinafter, therefore, etc.).

20. Avoid “said” and “same.”

21. Avoid “witnesseth.”

22. Use “which” and “that” properly (“that” without a comma is restrictive/essential; “which” with a comma is nonrestrictive/supplemental. While revising, when­ever you spot a “which” that does not follow a comma, odds are it needs to be “that.”).

23. Cut adverbs by choosing a more precise noun.

24. Cut adjectives by choosing a more precise noun.

25. Cut the non-essential.

26. Avoid words with more than one meaning (ambiguity).

27. Avoid adjectives before two nouns (“research contracts and grants”).

28. “Rule of Last Antecedent” (qualifying phrases apply to the word/phrase immediately preceding, not to other words/phrases).

29. Avoid shot-gunning to cover every possibility when a single word will do.

30. Arrange words with care.

31. Use familiar concrete words.

32. Brevity.

33. Repeat only when repetition is necessary to improve clarity.

34. Contract writing is not creative writing; be clear, direct, and precise, not reflective, provocative, or entertaining.

35. Be consistent in using the terms of art like “Licensed Product” and “Licensed Software.” Don’t call them items, goods, products, etc., elsewhere in the contract.

36. Group related material together in a logical sequence.

37. Write as if a judge and jury would have to understand it.

38. Use design elements to emphasize key points.

39. Use short paragraphs.

40. Be sure that others don’t describe your contract draft­ing as follows: “Construing such conglomerate provisions requires a skill not unlike that called for in the decipher­ment of obscure palimpsest texts.” [15]

 

Also Review These Additional Examples of Common Legalese:

Many more great examples of common legalese and their simpler, more readable replacements are offered by  Professor. Eugene Volokh, UCLA Law School, at: http://www2.law.ucla.edu/volokh/legalese.htm  [16]

Conclusion:

The primary goal of a written agreement is to facilitate an on-going mutually beneficial contractual win-win relationship between the contracting parties.  In professional contracts management it is very important to be able to initially identify and revise any unnecessary and confusing legalese in an agreement.  The checklist in this article certainly helps in identifying unnecessary and confusing legalese in contracts.  However, this checklist is not exhaustive.  Every agreement has some unique aspects that may not be addressed in this checklist.  However, if you routinely use this checklist as one of several resources when you initially draft or review an agreement, you will be pleasantly surprised with the large number of substantive, material, risk reduction, performance  improvement, and cost-savings issues that will be surfaced for proper resolution.

Consider the above checklist as a contractual risk prevention tool for the reduction of unnecessary and confusing legalese in written contracts.   Just remember, “an ounce of prevention is worth a pound of cure.” [17]

 

 

 

 

 

About The Author:

JOHN (“JOHNNY”) E. MILLER, is a Texas and Missouri attorney. Currently, Johnny is “Vice President and General Counsel” for Peterman Consulting Associates LLC (PCALLC) with offices in the San Antonio and Austin, Texas areas. Over the years, he has worked in contracts management for many companies. Johnny’s contracts management web site is www.Con-tracts.com .  He is a member of the Greater San Antonio Chapter of NCMA.

If your organization would like more information on Peterman Consulting Associates LLC, please contact Johnny at johnny@con-tracts.com .

Send comments about this article to cm@ncmahq.org.

 

End Notes:

[17] See Ben Franklin, The Electric Ben Franklin at http://www.ushistory.org/franklin/quotable/quote67.htm