English Difference part 1
- Standard contract templates might seem like a time-saver. But if they are written in complicated legalese, they can irritate your customers and harm your business.
- If it’s difficult to understand, it can be ambiguous, too. This creates headaches for customers, puts strain on business relationships, and can end up trashing your reputation.
- In this two-part series, Trevor Fenton shows how taking the time to write commercial contracts in plain English is better for your business, your brand, and your bottom line in the long-run.
Episode Title: The Plain English Difference: Part 1 of 2
Standard contract templates might seem like a time-saver. But if they are written complicated legalese, they can irritate your customers and harm your business.
If it’s difficult to understand, it can easily be ambiguous, too. This creates headaches for customers, puts strain on business relationships, and can end up trashing your reputation.
In this two-part series, Trevor Fenton shows how taking the time to write commercial contracts in plain English is better for your business, your brand, and your bottom line in the long-run.
Speaking: Dayle Rodriguez from Amakari Services interviews Trevor Fenton from Plain English Law.
Recording Date: 16 Aug 2021
Recording Length: 00:24:05
Hi there, this is Trevor Fenton from Plain English Law. We’ve made this series of podcasts by recording conversations between me and Dayle Rodriguez of Amakari Services. Today it’s Part 1 of a two-part podcast called ‘The Plain English Difference’. We talk about how I became interested in the ‘plain language’ movement, re-write some legalese into plain English, and discuss how writing a contract ‘for the judge’ might not mean what you think. Part 2 of this podcast is also available on the Plain English Law website at https://plainenglish.law/podcasts/
DR: So, “Plain English Law” – that name is pretty straightforward. Tell me about the idea for that? Obviously it means ‘commercial law without some of the legal mumbo jumbo’, but did you have a defining moment or time? As in, when you thought the legalese had to stop and that it could be done in a different way?
TF: Well, the ‘this has to stop’ moment was probably the first time I tried reading software on a software package that I was opening back in the days when you actually received software on floppy discs. And I was opening the package and you start reading the terms and conditions on the outside of the package, half of which are written in all caps, and it's very, very shouty. The sentences are very long, it's full of legal jargon, full of technical jargon, and I'm looking at this, you know, probably like most people thinking: “They can't possibly think I'm going to read this?!”
And at some point later in my adult life, when I was in law school, I was fortunate enough to have a law professor who was very much committed to drafting legal documents in plain English. Whether you were talking about contracts or wills or letters, even an email written by a lawyer – you can tell a lot of the times that the email was written by a lawyer just because of the style that they use in writing that email to their own client. You see the word “shall” a lot, you see a lot of passive voice, a lot of long, artificially formal sentences written in ways that nobody would ever speak to you. And even the lawyer who wrote it would probably never speak to you that way. So why are they writing to you that way? It’s a bit jarring.
And so this professor was committed to teaching us how to write in plain English. And I thought this is great. There is a plain language movement that started, surprisingly enough in the US I think, and the US government's been banging the drum for plain language documentation, plan language legislation as well. So when they draft laws down there, the intention is to write it in language that typical, you know regular people can understand and that hasn't been the way things have been done historically. So it was a big shift for lawmakers, for legal drafters and for lawyers to start thinking about writing things in more standard everyday English, instead of writing them in this artificially formal pseudo-Shakespearean style that lawyers are known and maybe not loved for. So I saw some hope there.
You know I trained as a lawyer initially in Canada and I saw how it is that lawyers get their jobs done. And then I started to understand why the legalese persisted. Because a lot of lawyers, most lawyers, don't draft contracts from scratch. They use databases full of templates, full of precedent contracts that have been in use and recycled for decades. Or in some cases, some of these clauses that you'll find in these contract templates, go back even a century or more.
And so they were written by people in a different era when this was expected and considered normal, that is, a normal way of writing even business correspondence. If you look at a business letter written in the early 20th or late 19th century, it’s very formal. It's totally different from anything you'd see businesspeople writing to each other today. Legal documentation hasn't made that transition quite in the same way to normal everyday English.
DR: Are there, when it comes to these kinds of contracts and templates, because obviously this is this is still ongoing, otherwise Plain English Law wouldn't exist, right? It's still a thing. Do you, or rather can you speculate? Do you know why it still happens? Or have you just explained? Sorry, maybe you explained that in your previous answer. Is it because basically lots of lawyers use these kind of precedent law contracts and then reuse them and then don't update them? Or is it a case of a certain level of fear or posturing? Do you know why it continues like that?
TF: Yes, all of that. And I would also add: it takes time to update these things. So it's all of what you've just said. Number one it's fear. Ok, if you're a young lawyer and you are learning how to practise law, you have to remember you're also learning how to practise law profitably, which means you have to get your job done. You're asked to produce a contract. You need to produce that contract for your client efficiently enough that the bill will be tolerable to the client. Most law firms will bill on an hourly rate, so if you take too long because you're trying to take this contract template that you've been handed and you're trying to make it better, the question is, is your client willing to pay for that?
I personally think more clients would be willing to pay for that than we assume, but it takes time. And so the fear is… there are couple of fears. Number one, my client is not going to pay me for all the effort that it takes to hammer the legalese out of this. There is the fear my client will not value a plain language contract.
I think that's probably mistaken. At least I hope so anyway! (laughing) I've started a firm called Plain English Law on the belief that there are clients out there who will pay for this.
DR: No, I'm inclined to agree. As you know, I'm a small business owner and you know, I did the typical thing where I started using templates and contracts templates initially because they were quick and easy and accessible, and I can modify them a little bit. But yeah, I was quite lost in the wordage like the “herewiths” and the “vis-à-vis”. And I know what all those words mean, but when it's in a written form you're just like, whoa.
TF: It's intimidating.
DR: Yeah, it is. And so in your experience, are there any particular phrases or words that constantly get used even to this day that you wouldn't consider ‘plain English’. Are you able to expand on them, explain what they actually mean.
TF: Well, there are a number of them.
DR: What ones do you particularly dislike maybe? You see them and you're like, “Why is that even there? That doesn't work.” Does that make sense?
TF: Ok yes, well the one that drives me that nuts probably more than anything is the little phrase: “For the avoidance of doubt.” So, you'll be reading along through a contract and then you'll get to a point where it says: “For the avoidance of doubt…” and then it'll go on and essentially restate something that had been said before.
I don't know if you'd call this a sort of verbal tic or an almost a written form of clearing your throat. I don't know what you'd call it, but it's not enough to wonder what value those four words add, it’s wondering what value does the rest of the sentence that follows those four words add?
Because what you're essentially saying, as the contract drafter if you are putting those words into a contract, in my view you're saying: “I'm not sure. I think I might have left some doubt with the last sentence of the last paragraph.” Well, if that's what you think you've done, then maybe you need to re-draft that last part and remove the doubt in the first place. Instead, you're putting “For the avoidance of doubt…” and then lengthening the contract in the process.
And even worse, you're quite possibly rephrasing or slightly recasting something that you've already written about. And when someone comes along later, if this contract ever ends up in front of a judge, which is pretty rare, by the way, but you know it, it can happen. More likely, if your customer or your supplier or whoever else you've made this agreement with, if they pull this agreement out of the drawer and read it, they're going to come across this and they're going to say: “Well, which version am I supposed to pay attention to? The bit that caused the doubt, or the bit that's supposed to resolve the doubt?” One issue resolved in at least two different ways in the same contract is a recipe for confusion and possibly conflict.
So yeah, that should be your red flag, I think as a contract drafter, pause after you want to put those words in. It says that you're not comfortable with what you have drafted. Immediately stop, put the pen away. Go back. Fix it.
DR: Can I can I touch on something you mentioned there because you know we've mentioned this in previous conversations and I think it's interesting to know. Why is the..? There's the phrase, you know, “the contract is written for the judge”. Why is that a poor excuse?
TF: For a few reasons. Number one, of course you write for the judge, but the judge is a human being, just like your client or whoever you're writing the contract for. Let's put it this way: if your client understands the contract, give the judge a bit of credit. They will probably understand the contract as well, so writing it in a language that's more accessible to your client is not going to put it out of reach of the judge, so you can write it for both.
Secondly, judges would probably thank you and thank all of us to stop, quote-unquote, “writing for the judge”. Because that's when the legalese comes out, that's when the jargon comes out, that's when the Latin comes out. And I don't know a whole lot of judges, but I've met a couple and I clerked for a couple of trial court judges when I was a law student, and they hate the legalese. They hate the long drafts because it consumes their time. They would love nothing more than to get concise, plain language drafting in everything that they get from the lawyers that appear in front of them. So that's why drafting for the judge is a bit of a, well, I don't think that drafting in a legalese style is drafting for the judge. I think you're making the judge’s job harder and you're making your client’s job harder.
DR: That's fair enough. Going on a slight tangent. Do you have any examples of a non-plain English contract versus maybe a plain English version?
TF: Sure. First off, plain English is partly about being understandable and part of that, by the way, is just shortening the entire document because people get exhausted. So if you're putting clauses or sentences into a contract that don't actually help, that aren't necessary, you're just making the document longer and more tedious. And you're making it more likely that people will start skimming through and miss the important bits because they're buried in amongst nonsense that doesn't need to be there. So I'll give you an example.
My two favourite examples. You'll find this in a huge number of contract drafts, somewhere near the top there will be a section dealing with ‘interpreting the contract’. And you'll find sentences like this:
“Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.”
DR: Ok, I don't understand what I said.
TF: Right! If I was to write this in plain language... Ok, first off, this sentence is utterly unnecessary. It shouldn't be in the contract at all.
Now what does it mean in plain English? I'm just going to draft this in my head as we go because I haven't actually drafted this. What it says is: “In this contract, if a word is used in plural form, interpret it so that it's singular whenever necessary.”
Ok, number one: if you've written the contract that badly that when someone gets to a sentence, they're not sure if this if you really meant it to be singular or plural, then that's bad drafting. This clause doesn't fix it.
I've challenged a number of lawyers to point me to a single case in any English-speaking jurisdiction where this clause (because trust me, this exact wording appears in billions of contracts out there, literally billions, because this is from a widely used legal database of precedents so this clause is in almost every precedent in that database, and that database is used by hundreds of thousands, possibly millions of English speaking lawyers.)… Ok, so I say point me to a single case where a judge has said: “Oh, that sentence helps. Now I know how to interpret this contract. Thank goodness for that sentence.” I'm going to say never-in-the-history-of-ever has that happened. This is a useless sentence.
Secondly, if you've drafted the contract that badly, this is a lazy person’s way of saying: “Well, rather than go back and fix my sloppy drafting, I'm going to bung this in here and just hope that it saves me when the judge comes across my lousy drafting.
Ok, second example. Right after that singular-versus-plural sentence, you will almost always find this sentence:
“Unless the context otherwise requires a reference to one gender shall include a reference to the other genders.”
So in other words, if I've written this contract in a way that confuses you so you're not sure if I'm talking about a male, a female, or a non-binary person, or an other-gendered person, if I've confused you like that, please forgive me and just interpret this so it includes all of them.
Number one, what on Earth does that even mean? Number two, if you're writing a contract and your writing is so gendered that you're going to confuse people about which person you're talking about in a sentence, then your drafting is so badly broken that, trust me, this sentence is not going to help anyone undo your broken drafting.
And again, I challenge any English-speaking lawyer to point me to a single case anywhere in the world where this clause and the billions of times it's been used in contracts has ever helped anyone resolve: “What does this sentence further down the contract mean.” So this stuff... just knock it out. It's absolute nonsense and it lengthens the contract.
And it causes your reaction, Dale. Perfect. I read the sentence to you – maybe if you had read the sentence yourself…
DR: No, I don't think so. I think I could have read it and still been confused.
TF: And I think a lot of people would be as well. Because, first of all those words: “Unless the context otherwise requires…” Just the ordering of those words. Nobody talks like that, and almost nobody writes like that unless they're writing a contract. Or, you know, pretending to be a lawyer.
I shouldn't say ‘pretending to be a lawyer’. Lawyers write like this for crying out loud!
But this is, in inverted commas: “I'm writing legal.” It's not necessary and it makes people stop and go ‘What? Wait!’ and they have to read it again. You're doing a massive disservice to your client, you're doing a massive disservice to their customer who's trying to agree a contract with them, because they're both either not going to read it at all because they just can't be bothered with it, or they spend a lot of time on it because it's confusing and it's badly written.
And then even worse, they finally come to the conclusion: “Sigh, that's not even necessary at all. That's a total waste of my time.” If they're lucky, they get to that point, but now they're annoyed and they've lost five minutes trying to figure out why they're reading this.
DR: And I guess as the saying goes, in business time is money, right? So the time you spend having to read the contract, if you're a non-legal minded person, and try to interpret it. And then obviously you have a contract – that means there's two entities involved – so I have to get the supplier or customer or client working with me to understand it and if they have questions about it. That’s a lot of time spent going back and forth. So, the plain English treatment again, if I understood correctly, those two examples probably wouldn't even make it into one of your contracts.
TF: Right, I would just leave them out.
DR: So that way I’m not confused by those two statements, because they're just not there, right?
So now I've got another example here. These are clauses that need to be in the contract, but it's the style of writing that's the problem that can be can be tightened up.
This is early on in a contract. It is essentially the introductory paragraphs that they are giving you some context for why the contract has been written. So here's what the original version said, and this is real, I didn't make this up. I copied and pasted this and then I'll give you my redraft of it. It starts off by saying this:
“Company A and Company B are desirous of entering into discussions regarding the project.”
OK, I'm going to stop there. That's only part of the part of the clause.
DR: Wait, did you say desire-ous?
TF: Yes, “-ous”. Desirous.
DR: I think I know what it means in context, but that's a really weird word.
TF: Tell me about it. So, these two companies are “desirous” of entering into discussions. Here’s my redraft:
“Company A and Company B intend to discuss.”
Who cares about desires?! (laughing) So right there we've shortened it, we've put it in an active voice in the present tense, and you don't have to read it a second time. It's pretty clear what they're doing: these two companies intend to discuss the project.
The next sentence in the legalese version says:
“During and as a consequence of discussions concerning the project, it will become necessary for each party to disclose to the other certain confidential and/or proprietary technical and/or business information which each party is agreeable but not compelled to disclose to the other party subject to the undertakings given by the other party in this agreement.”
DR: I'm not even going to try and interpret that. If you could just please provide me with the plain English version, that'd be great.
TF: For the plain English version, I broke it into two sentences and it just says:
“During these discussions, each party is likely to disclose proprietary information to the other party. This agreement governs the use and protection of any proprietary information exchanged between the parties.”
DR: That makes a lot more sense.
TF: It's still not, you know, pub talk, right? This isn't banter but it's still a business document. It's direct, in an active voice and present tense, none of this “and/or” nonsense. The original legalese version was 70 words long and my redraft is 40 words long and they cover the exact same territory.
DR: And is that where one of your straplines comes from? “We do business 1st and legal second.” Because it sounds to me when you're re-drafting those examples, you're writing them for a non-lawyer to read and not have to spend tonnes of time reading / interpreting. Is that fair to say?
TF: Yes, and the thing is with any commercial agreement, it's ‘commercial’ first. We don't say “legal commerce”, it's “commercial law”. The commerce comes first for a reason. Because any agreement that you write, any agreement you make with any other company or with it with a customer, whoever is, is simply it's a commercial agreement between the two of you where you're basically saying: “I'm going to do this you. You're going to do that. Here's what the price is. This is the schedule we will follow. And if one of us doesn't do what we promised to do in this document, here's how we're going to handle it.” That's pretty much what every commercial contract says.
There is no contract to write unless you first have a commercial agreement, in other words, business people shaking hands and saying: “Yes, this is what we're going to do together.” And then all the contract does is describe that commercial arrangement.
And yes, there are legal effects to that commercial arrangement, but the legal bit serves the commercial bit. There's no point in writing a contract unless it is to facilitate a commercial deal. That's what a commercial contract does. The contract and the legal bit of it – that’s not the object. The object is whatever transaction you're doing, whatever relationship you're setting up. It could be you're going into business with a business partner, so you're going to want to have a contract that describes how you run the business together, how you distribute the profits, etc. With that agreement, there's nothing to write until the two of you have sat down at the table and said: “Here's how we want to work together, here's how we'll manage the company, and here's what we'll do with the money.”
Part 1 transcript end
Listen to Part 2 here: https://plainenglish.law/podcast-the-plain-english-difference-part-2/