There is plenty of bad writing in the world. Sometimes it comes from sloppy thought being put to paper, and sometimes it is simply good, honest, illiteracy. It is always good to find out why the writing is bad, because then you can offer a solution. I think that I have answered one of the great “why” questions of bad writing, because after graduating law school, and spending some time in the profession, I have developed a very good grasp of legalese. You know what I am talking about, that atrociously obtuse verbiage volcanically spewed out by lawyers. It shows up in legislation, it shows up in contracts, briefs, complaints – anywhere the stained digits of a lawyer have intruded – and I understand it, and with that understanding comes the answer to why it exists in the first place.
Ready? Sitting down? There are two reasons for this onslaught of verbal refuse. Here they are…
The first is an attempt to balance precise meaning with the need to maintain argumentative wiggle room. For example: “This contract shall be construed under the laws of the state in which the contract was executed.” Seems pretty clear and first blush, but it isn’t. Shall be construed by who? Both parties? The party to be charged? Who? What if it is signed by one party and mailed out of state to the other party for their signature? Which state law controls? We can make reasonable assumptions that both parties shall construe the contract in this way, but what if evidence of an agreement to the contrary arises? Why not just say “This contract is governed by the laws of State X”? There is no construing involved, no question; just a simple, basic statement.
This brings us to the second reason: Billable hours. While there are many good and caring people in the legal profession, people who work hard and fight valiantly for their clients; in my humble opinion most lawyers seem to care more about billable hours than they do about putting out a good product, that is written documents. A dry, stuffy, complex document rife with archaic words and phrases takes longer to produce than a simple one, it causes more misunderstandings, which are more opportunities for legal action including litigation. All of that equals more billable hours, which equals more money.
So, when you enter into a contract, make sure the document is written to your advantage, not to the advantage of the lawyer who drafts it. Keep is simple, with one idea in each paragraph, with the parties clearly identified throughout either by name or by their role in the agreement (Landlord, Tenant), with bullet-point lists where necessary that are easy to read, and language that declares the contract expresses the entire agreement and that if one part of it is struck down in court, the rest of the contract will stand and remain enforceable.
Good writing, especially legal writing, is simple and concise. Simple, concise legal documents are fair and equitable to all concerned. Tell me, especially in this day and age, don’t we all deserve a little fairness?