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Use Plain Language in Contracts—No One Wants Legalese

Nov. 17, 2021, 9:00 AM

While reading a document the other day, I had to Google the term mutatis mutandis. What does this Medieval Latin communicate that the English translation (“once the necessary changes have been made”) doesn’t?

Like a lot of legalese, it doesn’t add anything but complexity.

No one has the patience to look up esoteric terms in a corporate document. No one wants to slog through sentences full of words like forthwith, heretofore, and whereas. That’s especially true today now that people have shorter attention spans and more cynicism toward jargon.

Jargon is a barrier; it stands in the way of building trust and it wastes the reader’s time. That’s why the U.S. government mandated the use of plain language back in the 1970s—there’s even a website dedicated to the cause. Still, most businesses aren’t following the same guidelines.

I’m calling on legal teams to break away from jargon and focus on what’s important: substance, meaning, and efficiency in communications. Here’s how.

Creating Space for Change

Many enterprise lawyers, both in-house and outside counsel, are accustomed to formal language. We could simplify legal jargon without sacrificing clarity or specificity, but changing habits and norms takes time and energy. We need advocates to set the example.

Darryl Chiang, director of legal at Google LLC, was one such advocate when we worked together in Google’s legal department. His leadership inspired me to introduce drafting guidelines for my legal team at Everlaw, where we write with the following goals in mind:

Help Stakeholders Make Informed Decisions

Our sales team shouldn’t need a legal background or a Latin-English dictionary to understand the intent of our contracts. Our business leaders are the ones who will decide if a contract is breached, and they should be able to do so without my team having to translate. Clear language shows that we care about our colleagues’ understanding.

Put Our Customers First

We must be the voice for our customers, especially when it comes to security and privacy obligations. Using plain language helps customers understand exactly what they’re agreeing to and helps build trust.

Save Time

It’s simply easier to digest and collaborate on documents that are clearly, concisely written.

Companies have proven the time-saving benefits of using plain language contracts; GE Aviation, for example, introduced a rule that if a high-schooler couldn’t understand a contract, it was too complex. They measured success with a “negotiation-time metric” and found that they saved significant time while improving relationships with customers.

I’m excited to see more companies introduce consumer-friendly terms and conditions—hopefully, these will accelerate the trend away from legalese. One example is the digital insurance company Lemonade. Its policyis simply worded, and the company offers a shorter version that summarizes the main points.

Making the Change

Seeing the value of clearer, more concise legal documents is one thing. Implementing a jargon-free (or at least reduced-jargon) culture in your own organization may be a little daunting.

I recommend starting with small steps and a pilot test group. Choose a relatively low-impact or low-risk document to start with, such as an internal memo, and practice before-and-after scenarios with your team, giving them a chance to see the difference between jargon-heavy writing and plain language communications.

Guidelines like the following can help to set an example for clear, concise, easy-to-read writing.

  • Use active voice and present tense. For example, “break away from jargon” is active; “jargon must be broken away from” is passive. (My editors just modified that for me!)
  • Eliminate buried verbs, which often involve suffixes like -tion, -sion, -ment, -ence, -ance, and -ity. For example, makes provision for —> provides; be in compliance with —> comply with; exhibit resistance —> resist.
  • Use headings and indentation to break up blocks of text. Bullet points are your friend.
  • Break up long sentences. It’s often easier to find long sentences when you read out loud.
  • Simplify phrases that can be communicated with fewer words. For example, subsequent to —> after; until such time as —> until.

Making big changes starts with small steps. You might not be able to eliminate legalese right away—and every lawyer knows that some Latin phrases, like a priori and de facto, are best suited for expressing some ideas. It’s why they’re widely used outside the legal profession.

It’s fine to blend a bit of tradition with new approaches, if the result helps us achieve broader aims: communicating more clearly, empowering our colleagues, and better serving our customers.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Shana Simmons is the general counsel of Everlaw Inc., a collaborative, cloud-based ediscovery and investigation platform for corporate counsels, litigators, and government attorneys. Prior to Everlaw, she was at Google leading teams that supported Google Cloud’s growth and success in new markets around the world.

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