When most people think of a contract, they envision a document filled with dense, complex language that seems far removed from everyday speech. This type of writing, often referred to as “legalese,” is typically associated with professional legal documents drafted by trained lawyers. However, a study by Eric Martínez, Francis Mollicab and Edward Gibson has revealed a surprising trend – even individuals without formal legal training tend to use legalese when creating contracts. This finding raises important questions about the nature of legal language, its perceived importance and its impact on communication and comprehension in legal contexts.
The Study: Unveiling the Unexpected
The researchers conducted an extensive analysis of over 250,000 contracts, a significant portion of which were created by individuals without formal legal education. Despite the lack of professional legal training among many of the authors, the researchers discovered a prevalent use of legal jargon and complex sentence structures typically associated with professional legal writing. This unexpected finding challenges many assumptions about the origin and perpetuation of legalese in legal documents.
Factors Contributing to the Use of Legalese
Several key factors contribute to the widespread use of legalese by laypeople when drafting contracts:
- The Influence of Templates and Precedents. One of the primary reasons identified by the researchers is the extensive use of templates and precedents. When faced with the task of drafting a contract, many individuals turn to online resources, pre-existing documents or templates as starting points. These sources often contain standard legal phrases and clauses, which are then incorporated into new contracts. The reasoning behind this approach is straightforward. If a particular phrasing or structure has been used successfully in the past, it’s likely to be effective in the future as well.
- The Perception of Formality and Authority. There’s a widespread belief that contracts need to “sound official” to be taken seriously and have legal weight. This perception drives many non-lawyers to mimic the formal, complex style they associate with legal documents. The use of archaic or specialized language is often seen as a way to lend authority and gravitas to the contract, even if it comes at the cost of clarity.
- Risk Aversion and the Fear of Mistakes. Contracts often deal with important matters that can have significant legal and financial consequences. This inherent gravity leads many people to err on the side of caution when drafting these documents. There’s a prevailing belief that adhering to established “tried and true” legal language is safer than attempting to simplify the text. Many non-lawyers (and lawyers) fear that deviating from traditional legal phrasing might introduce ambiguities or loopholes that could be exploited later.
- The Illusion of Comprehensiveness. Legalese often involves long, complex sentences that attempt to cover every possible scenario or contingency. For non-lawyers drafting contracts, this exhaustive approach can seem like a way to ensure that nothing is left to chance. The belief is that by including every conceivable clause and condition, the contract will be more robust and less likely to be challenged or misinterpreted.
The Unintended Consequences of Legalese
While the use of legalese might feel like a safer or more professional approach to contract drafting, it can lead to several unintended consequences:
- Reduced Comprehension and Accessibility. Perhaps the most significant issue with legalese is that it makes contracts difficult to read and understand for the average person (and sometimes judges). This can lead to misinterpretations, misunderstandings, and disputes—ironically, the very outcomes that the use of precise legal language is intended to prevent.
- Perpetuation of Complexity. The study suggests that the use of legalese by non-lawyers creates a self-perpetuating cycle of complexity. As more people encounter and replicate this type of language, it becomes further entrenched as the perceived “correct” way to write contracts. This makes it increasingly challenging to break free from the tradition of legalese and move towards clearer, more accessible language.
- Potential for Errors and Misuse. When non-lawyers attempt to use legal jargon without fully understanding its implications, there’s a risk of misusing terms or creating clauses that don’t accurately reflect the parties’ intentions. This can lead to contracts that are not only difficult to understand but also legally flawed or unenforceable.
- Increased Likelihood of Disputes. Contracts written in complex legalese are more likely to lead to disputes, as parties may have different interpretations of the dense language. This can result in increased litigation, which is often costly and time-consuming for all involved.
Moving Towards Clearer Communication in Contracts
Given the challenges posed by the widespread use of legalese, there’s a growing movement towards clearer, more accessible language in legal documents:
- Plain Language Initiatives. Many legal experts and linguists are advocating for the use of plain language in contracts. The goal is to make legal documents understandable to everyone involved, not just those with legal training. This approach focuses on using everyday language, shorter sentences and clearer structure to convey legal concepts.
- Education and Resources. Providing better education and resources for non-lawyers on effective contract drafting can help break the cycle of legalese. This could include guides on using plain language, tools for simplifying complex text and explanations of common legal concepts in accessible terms.
- Challenging Assumptions. It’s important to challenge the assumption that more complex language automatically makes a contract more legally sound. Encouraging people to question why certain phrases or structures are used can lead to more thoughtful and effective contract drafting.
- Professional Support. While the trend towards DIY legal documents is likely to continue, encouraging people to seek professional legal advice when drafting important contracts can help ensure that documents are both clear and legally robust.
Conclusion
The study by Martínez and his collleagues reveals that the use of legalese in contracts is not limited to professional legal circles but is a widespread phenomenon even among laypeople. Understanding the reasons behind this trend—including the influence of templates, perceptions of formality, risk aversion and the illusion of comprehensiveness—is crucial in addressing the challenges it poses.
There’s a growing recognition of the need for clearer, more accessible language in legal documents. By challenging the status quo, providing better resources and education, and promoting plain language initiatives, we can work towards a legal landscape where contracts are not only legally sound but also understandable to all parties involved.
Ultimately, the goal should be to create contracts that serve their primary purpose, clearly and effectively communicating the agreement between parties. As the study shows, achieving this goal may require a significant shift in how we approach legal language, and not just among professionals.