Reading through legal documents can be a real slog. Who, after all, knows the meaning of “ex curia” or “de jure” without going to law school? Whose head doesn’t spin at words such as “hereinafter” or at endless sentences with hypercomplex grammar?
As it turns out, even lawyers dislike such impenetrable language; according to a new study, they both prefer and better understand simplified texts. The researchers presented 105 U.S. attorneys with contract excerpts written in both “legalese” and plain English and tested their comprehension and recall for each. While the attorneys outperformed laypeople overall, they still found the legalese contracts harder to grasp than those written in plain English. Another group of attorneys was asked to judge the merits of the same contracts and, on the whole, found the plain-English versions to be of a higher quality, more likely to be signed by clients and no less enforceable than their legalese counterparts. The study was published recently in the journal Proceedings of the National Academy of Sciences USA.
Lawyers won’t often admit a preference for plain language, says the study’s lead author Eric Martínez, a licensed attorney and doctoral student studying cognitive science at the Massachusetts Institute of Technology. “You hear lawyers complain about bad writing by other lawyers,” he says, “but it wasn’t as obvious to me that lawyers struggle to read these documents themselves.”
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Legal commentators have proposed various hypotheses for why lawyers default to legalese, such as that they do so in order to justify high fees, ingratiate themselves with other lawyers or convey complex concepts more precisely—or because, given their education and experience, they simply don’t notice that their writing is sometimes inaccessible. But the study’s results indicate that convoluted legal language persists mainly through convenience and tradition, not out of a particular preference for the style.
This tradition is deeply rooted and can’t be changed overnight. Contract attorneys largely rely on preexisting templates, which save time and money and are seen as less risky. “There’s this tendency to copy and paste,” Martínez says. And this reliance on lawyer speak starts early in an attorney’s education. “From day one [of law school], it seemed like people were already talking in this interesting, lawyerly way,” he says.
But a break from tradition could particularly benefit those who often fall on the margins of the legal system. In immigration proceedings, for example, ensuring that documents are “clear and digestible, not to mention available in multiple languages, could make a pretty big difference for many, many people,” says Rebecca Pilar Buckwalter-Poza, an attorney and progressive advocate. She also cites custody disputes as being in need of simplification, “especially in instances where there’s a domestic violence component or there are other power dynamics in play.” The average U.S. attorney charges some $300 per hour, she notes, and there’s generally no right to counsel in civil proceedings, creating significant hurdles for those who can’t afford a lawyer’s help.
Lawyers and laypeople alike have been railing against legalese for dozens—if not hundreds—of years. The “plain-language movement” ramped up around 1972, when President Richard Nixon decreed that the Federal Register’s government rules and notices be written in “layman’s terms.” Six years later President Jimmy Carter signed an executive order requiring federal regulations to be “as simple and clear as possible,” and further attempts to improve the clarity of government documents were made during the Clinton and Obama administrations. Related attempts to simplify jury instructions, Miranda warnings and contracts have likewise proceeded in fits and starts. Yet when Martínez and two of his colleagues reviewed federal legislation dating back to 1951, they determined that the prevalence of difficult-to-understand language features, such as archaic lawyerly jargon and long definitions inserted in the middle of sentences, had not declined.
Jeremy Telman, a law professor at the Oklahoma City University School of Law and editor of the ContractsProf blog, agrees that contracts shouldn’t be “needlessly opaque.” But he points out that attorneys often have a good reason for using seemingly byzantine language, including that it may have already been tested in court. “If you change something,” Telman says, “you’re kind of rolling the dice to see if the court will understand it the way you intended.” For his part, Martínez holds that if the language was truly bulletproof, then the contract might never have been challenged in court in the first place.
For Telman, the main issue regarding everyday contracts (such as online terms of service agreements) is not their complexity but rather their length and ubiquity. “I never read [those] contracts before I sign them,” he says. “Why? I mean, life is too short.” He points to a 2008 paper that calculated that the average person would need to devote about 30 workdays a year to fully read the privacy policy on every website they visit.
“These things are failing and having absolutely no effect,” says Omri Ben-Shahar, a law professor at the University of Chicago Law School, about online privacy policies, doctor’s consent forms, mortgage papers and their ilk. He once printed out the entirety of his iTunes contract—which, he noted, was riddled with typos and grammatical mistakes—and hung it from the ceiling of the campus law library, where it stretched over two stories long. In Ben-Shahar’s view, simplifying these contracts would do nothing to protect consumers, especially when they’re up against “a powerful, well-advised, sophisticated company.” But other legal scholars feel this couldn’t hurt. “Anything that chips away at barriers to justice is a welcome development,” Buckwalter-Poza says.