In a word: very.
But why use one word when you can use a hundred and seven: In the event that the reader of this blog post (hereinafter, “Reader”) enters into, agrees to, executes, modifies, commits to, or otherwise obligates him- or herself to any legally binding document, whether written or oral, including but not limited to a contract, user agreement, service terms and conditions, trust agreement, will and/or last testament, or limited liability company operating agreement, Reader agrees that said document shall include, inter alia, at least one sentence consisting of more than twenty-five (25) words and not less than five (5) of any combination of the following words, terms, and/or phrases: said, shall, hereinafter, heretofore, thereof, thereto, and/or any Latin word or term.
I’m joking, of course… sort of.
“Brevity is the soul of wit.” ― William Shakespeare, Hamlet
Outside of the law, it is widely agreed that the best writing is simple and concise. You would probably never know it from the length, complexity, and appearance of most legal documents that you have encountered, but there is widespread agreement among lawyers that legal writing should be simple and concise too. That was the message drilled into my head in law school more than 10 years ago. It’s the message of every legal writing seminar I’ve attended since then. Ask any lawyer, and I guarantee they will tell you that they strive for simplicity in their writing.
And yet despite this agreement, here is a sentence, plucked somewhat randomly, from a contract that I was just reviewing earlier today:
“In the event that the Tenant shall fail to make the payment of rent when due or shall fail to perform in accordance with the covenants and conditions herein set forth, said sum shall be retained by the Landlord and applied towards Landlord’s damages resulting from Tenant’s default.”
That’s 48 words to express the common sense notion that if a tenant fails to pay his rent on time or damages the property, the landlord gets to keep his security deposit.
And it’s not just the number of words that is the problem. It’s the words that lawyers choose to use. Is there some reason that calling it “said sum” makes this document legally enforceable, whereas calling it “the deposit” would not have? No, there isn’t.
“I have only made this letter longer because I have not had the time to make it shorter.” ― Blaise Pascal, The Provincial Letters
So if everyone agrees that people who draft legal documents should strive for simplicity and brevity, why does “legalese” persist? I’m pretty sure that the lawyer who drafted the sentence above never uses “said” as an adjective in his day-to-day life… or uses the word “shall” at all. And I’d be shocked to find out he hadn’t heard at least a few times that he should avoid using passive voice. And yet, ask him to draft a contract, and suddenly every other sentence is about how said activity shall be undertaken by someone.
My theory is that the reason this type of writing has proven so difficult to eradicate is that, despite how unpleasant it is to read, we lawyers know that it accomplishes what we’re trying to accomplish. The key to being a good lawyer is taking something that you know has worked before and applying it as close as possible to the new problem that you’re trying to solve. We’re not trying to write best sellers here. We’re just trying to get the job done. Coming up with something new is risky. Lawyers don’t like risk.
So if a client comes into your office and asks you to draft a contract, your first move as a lawyer is to try to find an old contract that did something similar to what the client wants to do now, and then change it as little as necessary to adapt it to the new situation. Is the reason that the old contract worked that it was written in the third person, passive voice? Probably not. But why take a chance?
Resolving to do things differently
The problem that I see with this approach is that most documents are drafted for use by non-lawyers. If you’re drafting a lease, you’re not doing your client much of a service if the document with which you provide him is entirely incomprehensible to anyone but a lawyer.
For that reason, when I started my own firm, I resolved to aim for simplicity in all my documents, even if it meant having to spend a lot of time substantially redrafting documents that I know would probably get the job done. What does this mean in practice? It at least means the following:
- I write my documents in the first person, active voice instead of third person, passive voice. Referring to people by their names is almost always easier than trying to keep straight who “Lessee” and “Lessor” are, for instance.
- I use specially defined terms reluctantly and sparingly.
- I format my documents for maximum readability. This includes using at least 14 point font for all text, setting off different sections of documents with headings that stand out from the body text, using large margins and lots of white space to break documents up into manageable chunks, and minimizing the amount of text that I give special emphasis to. When I do want to emphasize certain text, I put it in bold or italic fonts, not all capital letters, which has been proven, ironically, to make text harder to read.
- I don’t use words in legal documents that I would never use in any other context. There are no “heretofores,” “thereofs,” or “hereinafters.” I don’t use the word “said” as an adjective, and I don’t use the word “shall” at all.
- I strive for brevity. I would, for example, change “In the event that the Tenant shall fail to make the payment of rent when due” to “If Tenant fails to pay rent on time.”
Keeping documents short and understandable is a constant struggle. The writer Louise Brooks famously described writing as “1 percent inspiration, and 99 percent elimination.” But it’s a struggle I have committed myself to undertaking. If you are paying a lot of money for a legal document, you at least deserve something that you understand. If that is not what you are getting from your attorney, give me a call and let’s see if I can simplify things for you.