The Construction of Contracts: Problems with Plain English for the Interpretation of Legalese 1

Lawyers have long been derided for their use of verbose and complex language.  Businesses often criticise legal teams for turning simple commercial agreements into indecipherable esoteric jargon.

The state of legal drafting is likely to be responsible for a large portion of the commercial litigation occurring these days.

TECHNICALITIES

When I was at law school someone asked why judgements were written in such complicated language.  The lecturer gave the rather unsatisfactory answer of “well, they just are, so I suggested you get used to writing like that as well.”  So begins the institutionalisation of the legal mind.  Whilst lawyers argue that complex topics beget complex documents it need not always be the case.  It is simply not sufficient to argue that circumlocutory language is essential to navigate the labyrinthine technicalities of the law.

MEANING v INTERPRETATION 

The problems is not the generation of meaning it is surviving interpretation.  For instance, it is one thing to explain a business model so that your nine year old daughter understands it.  It is another thing entirely for the same language to stand up to intense scrutiny from another party who stands to lose money on that interpretation.

The phrase lawyers use is “covering the field”.  Lawyers reduce the penetration of an attack by reducing all the avenues of construction so that there is only one possible interpretation.  What is left is usually a wordy cocktail which is so complex that it defies the very interpretation intended.

THE PROBLEM WITH PLAIN ENGLISH

The problem with plain English is that it dumbs-down complex concepts.  Jargon, on the other hand, usually arises in two situations:  (a) where the author seeks to look cleverer than they really are, and (b) where the author is trying to convey complex concepts precisely to an audience of the same background understanding.

The fact is that English is an imprecise language.  It is no wonder that French is the international language of diplomacy.  For instance, in English we have no gender for our nouns.  There is no way of telling which preceding noun the ‘he’ or ‘she’ of a sentence relates to.

UNDERSTANDING THROUGH CONCEPTUALISATION

Understanding, therefore, is created through a common conceptualisation not the design of the language.  Two builders, for example, will understand an agreement to build a house based on the architectural schematics.  Two bankers will, likewise, understand the securitisation of debt and sale as a derivative.  Both of these contracts will be entirely opaque to most of us and certainly to the nine year old daughter.

The trick, therefore, is in the creation of a common conceptualisation, one that is understandable and interpretable to the rest of us.  “The rest of us” should include the judge and expert witnesses should the matter ever be disputed.

ARCHITECTURE

English, therefore, is not the problem.  Architecture is the problem.  Agreements fail through the inability to create a common operating model.  Much can be brought over from the building and construction industry wherein the architecture, engineering and schedule form key artefacts of the business agreement and reduce ambiguity and uncertainty.  Likewise, where parties create an easily interpretable model (physical or conceptual) then the likelihood of  ambiguity, misinterpretation or, perish the thought, obligation avoidance, is greatly reduced.  Defence departments are moving this way through the use of Defence Architecture Frameworks (such as MoDAF, DoDAF and NAF) although none are optimised for the use in legal documents just yet. However, it will be a long time and only with huge a huge push from the business community that the state of legal drafting will change for the better.