After many years in the profession, I’m convinced that the most difficult skill for any lawyer to master is the ability to write with simplicity and clarity. I believe there are several reasons for this. The first is that under the ethics rules of most bar associations, lawyers are charged with “zealous” representation of the interests of their clients. Not “good” or “satisfactory” or “adequate” – but, “zealous”. As a result, most attorneys draft agreements to cover every possibility no matter how remote or unlikely.
A second reason is that attorneys seldom create agreements from scratch. Instead, in the interests of efficiency, we build off existing templates and add additional language covering any contingencies that we have experienced or imagined. When the next attorney uses your template, he or she rarely challenges the necessity of the additions that you have made. With each revision, the agreement grows in size and complexity. It’s not dissimilar from the process of creating some software.
Now layer onto this a third factor – fear of malpractice. Those stories about a minor drafting error resulting in a significant damage award are not just apocryphal.
The result is lengthy and verbose documents that create more ambiguity than they resolve. A classic example is the “force majeure” clause that you see in many agreements. Originally, it was intended to identify occurrences outside the control of the parties that would excuse non-performance – i.e. “acts of God”. Attorneys then decided to include a list to identify what specific events were intended. Rather than tailoring that language to each contractual arrangement, successive attorneys kept adding to the list – “just to be on the safe side”. I’ve seen agreements identifying “volcanic eruptions” as a force majeure despite the fact that the geographic location of the contracting parties has not seen this type of event since our long ago predecessors walked the earth.
Unfortunately, these habits are difficult to break. For me it wasn’t until attending a class on legal writing that I began to understand that the complexity of my drafting was in many cases not protecting my clients. Instead, it was creating ambiguity. And, in the contract world ambiguity begets litigation.
With this in mind, I have actively “encouraged” 🙂 my organization to create contracts that are models of clarity and simplicity. We owe it to our internal clients and especially our customers. I’m happy to report that we are making progress. With the support of outside counsel (one who understands the benefit of drafting clarity) and reliance on the SEC’s guidelines for Plain English” our team is beginning to roll out new forms of contracts that we will be using with customers this year. I’ll admit it is not happening at the pace I would like, but given the breadth of our company’s business and our many types of partner relationships, we have a large number of agreements to change.
To give you a small example of the magnitude of the change, here’s what one agreement used to say about ordering:
Here is what we say now:
Notice any difference?
By the way, just to make sure that our efforts resulted in truly simple and easy to understand contracts, we did something else. We sent our agreements to an organization in England called the “Plain English Campaign”. This organization is an independent group with members in over 80 countries focused on fighting for plain English in public communications. The result? The Plain English Campaign reviewed our agreements and awarded them a “Crystal Mark” certification. It’s a sign that the terms meet the Campaign’s criteria and are considered a model of simplicity and clarity. We think our customers will feel the same way.