Another Legal Writing Rant

If you've ever tried to slog your way through a pre-printed contract, you've probably assumed that the stilted, archaic language is just the way that legal documents should be written. You wouldn't be alone. Most people seem to think that contracts, pleadings, wills, and all kinds of legal instruments need to sound like the King James Bible to be effective. THEY DON'T!

Moreover, after paying $300 an hour or more to document a straightforward business transaction, businesspeople have to wonder why they receive such incomprehensible work product for so much money. (At the same time, some of those clients are suspicious when they can actually understand what their lawyer has written; they wonder whether it's really legal).

Legal documents can be written in clear, precise English. When I encounter legaldegook -- writing that is good for nothing other than sounding "legal" -- I save it both for amusement and to use as an exercise in improving my own writing. Fixing someone else's mistakes is a good way to learn to recognize and fix my own.

That's where tonight's post comes from. I pulled this example from a contract I reviewed just today. I didn't rewrite it for the deal at hand, because it's just a no-cost product evaluation agreement. But because of its high concentration of pretentious legalisms in one short paragraph, I thought it would be a good editing challenge for the blog. I've italicized all of the objectionable parts of this section:

At the end of the Evaluation Period, Customer shall promptly return the Products to [Seller] at Customer’s sole expense. In the event that ten (10) calendar days following the end of the Evaluation Period Customer has not returned the Products or issued a valid Purchase Order to [Seller] therefore, this Agreement shall be considered Customer’s Purchase Order and [Seller] shall invoice Customer, and Customer shall be obligated to pay [Seller], for such Products at the then current list price pursuant to [Seller’s] standard terms and conditions of sale as set forth on the invoice issued by [Seller] to Customer and/or on its website.

Note the redundancy of words like "promptly" (there's a 10 day time limit!), "sole" ("Customer's expense" doesn't express or imply anyone else's expense does it?), and "calendar" days (the contract doesn't use "business" days elsewhere, so there's no need to distinguish, and the word "day" without modification commonly means "calendar day") .

Also note the multiple archaisms and pretensions of legal writing: "shall" instead of "will" or "must," "in the event that" instead of "if," "therefore" (which, if it is to be used at all, should be spelled "therefor" -- meaning "for that" -- a Germanic artifact in the English language), and "pursuant to" instead of "under."

Note also the lazy "and/or," which can almost always be replaced with "or." Here, the "and/or" actually tries to gloss over an ambiguity that the drafter didn't want to deal with (but would have been forced to, had he or she used only "and" or only "or"). What if both the invoice and the website contain different terms of sale? Which set of terms governs?

Addressing these issues, here's what I would do to clarify and invigorate the above:

At the end of the Evaluation Period, Customer will return the Products to Seller at Customer's expense. If Customer does not return the Products or issue a purchase order for them to Seller within 10 days after the end of the Evaluation Period, Seller may invoice Customer against this Agreement at Seller's then-current list prices for the Products. Customer must pay Seller the amount due under the invoice within [x] days after receiving it. Unless contrary or supplemental terms are printed on the invoice, Seller's standard terms and conditions found at [Seller's web address] will govern the sale of the Products to Customer.

OK, it's not Hemingway, but surely my version is both easier to read and legally clearer than the original, isn't it?

Posted by JohnL at February 21, 2005 08:58 PM