Issue 117 – November 2022
Before & After: Cut contract confusion
The subject of my before & after rings in at a post-graduate level, the level of “light reading” you find in academic journals.
In the old days, a handshake was your contract.
Today, the hands involved belong to lawyers, and they are all over the simplest of contracts. Unfortunately, as Ohio Judge Mark P. Painter says, “Most legal writing is atrocious.”
Forget short, crisp sentences. One reason is that lawyers keep adding qualifiers to tighten what a contract does or does not cover. Whoops, last time we only said “cancel.” Maybe it should be “cancel and annul.” No, we should make it “cancel, annul, and set aside.”
Sentences are long, strung together with multiple commas and semicolons before they meander to the end. Often, they’re also needlessly written in ALL CAPS. Words are long, too, usually including many “heretofores” and “hereinafters” and such.
The result is “a dense, overly lengthy contract that is loaded with legal jargon and virtually impossible for a non-lawyer to understand,” says Shawn Burton in the Harvard Business Review. He was the general counsel for GE Aviation’s digital services unit when he led the charge to simplify contracts to reduce the time needed to negotiate them.
I have an example with rules related to bribing foreign governments. This appeared in a recent client contract even though foreign governments have nothing to do with my work. Here it is, in all its wordy glory, complete with unnecessary quotation marks and capital letters:
The Parties are aware of the US Foreign Corrupt Practices Act ("FCPA") and the Canadian Foreign Corruption of Public Officials Act (“FCPOA”) and are familiar with their prohibition of the payment or giving of anything of value, either directly or indirectly, by a United States or Canadian company to an official of a foreign government for the purpose of influencing an act, or decision in his official capacity, or inducing him to use his influence with the foreign government to obtain or retain business.
The Parties will not in the performance of this Agreement engage in violation of the FCPA/FCPOA, will not directly or indirectly, or make or receive any offer, payment, promise to pay any money, gift or promise to give anything of value to any official or employee of, or any person acting in an official capacity for or on behalf of, any Canadian or US government agency for the purpose of influencing any official act or decision of any such official in order to assist either Party to obtain business or any other commercial advantage.
With a legal contract, you want everyone signing it to understand what they’re signing. How do you think this did? I ran it through some readability stats, and the results will not surprise you.
Storytoolz gives this a mythical grade 38 and a reading “ease” of minus 18.2/100. That’s off the scale of being not just difficult but extremely difficult to read. The Hemingway app agrees, shown by the sea of pinky-red. The whole piece rings in at a post-graduate level, the level of “light reading” you find in academic journals.
If you do nothing else, taking these four steps will make writing like this easier to read:
1. Break up long sentences. Studies show that an average of 14 words means up to 90% of readers understand the sentence. More than 43, you’re looking at zero to 9%. The two sentences in this piece average 89.5 words.
2. Use shorter, familiar, less formal words.
3. Replace wordy phrases with simpler options.
4. Use bulleted lists, headings and subheadings, graphics and white space to make a block of dense text more appealing.
Using those four tactics on this bribery section resulted in this “after:"
The yellow highlights show there are still some complex sentences, but they are an improvement from the red. The Hemingway app gives this a Grade 7 (“Good”). Storytoolz gives it a Flesch Reading Ease of 64.8 out of 100, considered plain English. Average sentence length is 10.4 words and no sentences are very hard to read. The edits also trimmed the block of writing by almost 25%.
Of course, when legal terms are involved, you need the lawyers to read through any simplified text to make sure it still covers the appropriate rears. That’s what GE Aviation did, and was still able to produce simplified contracts that led to a 60% decrease in the time needed to negotiate them.
Have you seen a “before” piece of writing that begs for an “after”? Please hit “reply” and share. I’m always looking for good (bad) examples.
Related reading:
The case for plain language contracts, by Shawn Burton
How to write *for* judges, not *like* judges, by Judge Painter (PDF); check the Appendix for good and bad phrases
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