I try to write as much as I can in plain English. As a lawyer, that isn’t always easy. Lawyers use five words with five syllables where a single two syllable word would do for many reasons — They don’t know any better; i.e., that’s the way it has always been done. They’re afraid they’ll miss some nuance or meaning. They’re lazy or their client won’t pay for better; i.e., the form they used as a template was written that way or the client won’t pay for a decent revision. (I want a lease tomorrow and I want it cheap.) They think it makes them sound like a “real lawyer.” Other lawyers will criticize them and accuse them of being a poor lawyer if their writing isn’t impenetrable. Sometimes it is an artifact of the negotiation process with each side adding words to “spell it out a little better” or to “clarify a point.” The end result is a morass that is neither spelled out nor clear the day a dispute arises. Here are some particularly egregious examples from The Legalese Hall of Shame. I’m really terrified by the thought of a four page 1,000 word sentence. Is such a thing even possible?
I believe that impenetrable legalese creates more problems than it solves. It can actually breed litigation when documents are so lengthy and ambiguous that they can be read a dozen different ways. It may take a third party in the form of a judge or jury to decide what it means, and they may not agree with the litigants. More on this tomorrow.
I was listening to a podcast of a speech recently when the speaker said something such as “Lawyers always say, get it in writing because then there is no doubt what you meant. You can’t argue with what’s written.” It was like nails on a chalkboard to my ear. The naivete! Only a non-lawyer could say that getting an agreement in writing ends all disputes.
You should get any important agreement in writing. Without a written agreement or understanding, there can be wild variations and disagreements as to what was said or agreed upon. However, getting it in writing won’t eliminate all disputes. A written agreement will certainly reduce the chance of a dispute and eliminate many areas of dispute, but no agreement is ever perfect.
Even with a writing, disputes can arise in a variety of ways. Unforeseen circumstances or events can arise leading to a disagreement over whether and how the agreement covers that situation. A carefully drafted agreement may nevertheless contain language that is ambiguous in retrospect or in actual practice although it seemed clear at the time it was written. Problems can even arise when a document is overwritten in an effort to address every single potential contingency. A whole body of law deals with how contracts are to be interpreted. For example, it is a well recognized legal principle that ambiguities in writings are construed against the drafter of the writing. This body of law has developed because even written agreements aren’t always crystal clear and can require interpretation.
You must be careful not only to get it in writing, but to make sure that the writing is clear. Say what you mean and mean what you say. Merely getting it in writing alone is not always enough.