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  • March 16, 2022

    Protecting the Client: Put an End to Legalese

    Legalese has been used excessively in contracts for too long. It creates an unnecessary hurdle that can be easily avoided by all contract drafters. Nicholas Fucinato discusses how legalese may cause readers to misinterpret language and lose the intent of an agreement.

    Nicholas Fucinato

    speaking jargon

    My first interaction with legalese in a contract was similar to most. “What did I just read? I’ll have to Google this. What is this sentence trying to say? That is an excessive number of commas. Do I need to learn Latin?”

    This confusion is an unnecessary burden on all contract readers. Business leaders and lay people should not be puzzled by what was agreed upon in a contract. Moreover, the attorneys or judges who eventually interpret the meaning of the contract should not have to decipher contract language like they are like Ralphie in A Christmas Story, figuring out the Little Orphan Annie message.

    Contract drafting should focus on protecting clients with clear language, not complex legalese.

    Coming to an agreement is not easy. It takes significant time, effort, and money. When the parties finally hit the sweet spot on an agreement, it should be clear what each party intended and agreed on.

    I am surprised how contracts still use this unnecessary, confusing language. Legalese is specialized terminology and phrasing used within legal documents.

    Here are some examples of the outdated words classified as legalese:

    • whereas
    • aforesaid
    • witnesseth
    • shall
    • heretofore
    • forthwith
    • ab initio
    • coupled with an interest

    These kind of legalese terms are not the only issue. Redundant, lengthy sentences can be formed to over-complicate a simple purpose just to make a contract “sound more legal.”

    Contract readers of all skill levels have to interpret a mess of punctuation and old English to understand the intent of the parties.

    Granted, length does not always reflect obscurity. Length of sentences can provide necessary language to also combat ambiguity and vagueness. The excessive, non-essential legalese however create an unnecessary wall built around clarity.

    Lessons from 1L Year

    The cases all law students have to read in their 1L Contracts course teach them many lessons. Not just how useful sites like Quimbee are, but how to avoid the mistakes made by contract writers in the past.

    Nicholas Fucinato Nicholas Fucinato, is a 3L at Marquette University Law School graduating in May 2022.

    We are taught to make sure the contract language you are writing has a plain meaning, clear intent, and conveys exactly what is agreed upon. Courts and attorneys should be able to easily discern what the intent of the parties were and what each word, sentence, and provision means. Clarity should be one of the top priorities when you are writing a contract. Extra words and drawn-out sentences can obscure the contract language.

    Drawing a Line

    As a contract writer, why should you risk creating ambiguity or vagueness? This may be a fine line to tow. Contract drafters want to include language that covers all legal points, and this may involve some of the established legalese in certain situations.

    However, purposely trying to create complex, wordy sentences to confuse the reader is an act of bad faith.

    Contracts should be definitive and concise about the intent of the parties, providing the reader a clear understanding of what the parties are agreeing to. This may involve some length or certain language but legalese can frustrate these goals if used excessively.

    Ambiguity and vagueness lead to conflict and litigation. Why include expendable legalese to confuse readers?

    Protects Clients, Prevents Litigation

    To all attorneys, it is time to keep it simple. The legal profession should not be about showing one’s knowledge of passive voice, sentence structure, or Black’s Law Dictionary.

    It should be about protecting clients and forming a contract that is definitive. A contract should distinctly lay out an agreement of the parties while covering all legal points.

    Ending the use of most legalese won’t hinder demand for trained and experienced attorneys. It will only help prevent ambiguity, confusion, and avoidable litigation. Business leaders and lay people will still need interpretations from attorneys, for they eventually interpret the meaning of the contract in the event of a dispute.

    Legalese on a Diet

    Only certain situations should involve legalese to provide specific meaning or established legal terms, including “force majeure,” “warranty,” and “indemnification.” These legal terms have a place in contracts to protect clients.

    Providing definitions of these terms, either in text or in another section, can be used to give clarity to these terms, if needed. (Tip: When defining difficult terms, never use the word you are defining in the definition of the word. This is a frustrating redundancy that I am shocked to see in contracts.)

    Also, updating standard contract forms that have been used for many years may be time consuming, but it is time to transition away from the old English and Latin. It is time to take out legalese and keep contract language clear and to the point.

    Conclusion: Times Are Changing

    Taking out legalese like the examples above should not be too burdensome of an update. The only legalese that should remain is the necessary terms and language to protect the client.

    I hope the legal profession will continue to grow out of its’ old, unnecessary habits. As Bob Dylan sang, “For the times they are a-changin’,” and excessive legalese that should be left behind.

    Learn how to write clearly and effectively in the upcoming Business Law Section CLE Applying the Golden Rule of Legal Writing on April 8, 2022. This is a live lunch hour webcast and is available for free to members of the Business Law Section.

    This article was originally published on the State Bar of Wisconsin’s Business Law Blog. Visit the State Bar sections or the Business Law Section webpages to learn more about the benefits of section membership.

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