Imagine you are in a new city and ask someone for directions to get to a restaurant and they respond with the following:
“Notwithstanding any help that I may extend you, my doing so shall not be construed by you as legal consent to incur any liability for any unintended consequences including but not limited to your inability to reach your destination and/or any injuries that howsoever unlikely may occur, and you shall have no claim therefor.”
You might wonder if this person happens to be an attorney and then perhaps ask yourself why they couldn’t just speak plainly. Exactly. This article explores this very question - Why can’t we speak plainly when it comes to legal documents?
In pop culture, Lawyers are often represented as people who talk in long cryptic verses that no one apart from other lawyers understand. One could even go as far as to say that the perception of the intelligence of a lawyer also comes from communicating in wordy incomprehensible text. But how effective is this approach of communicating in jargon when it comes to legal documents that businesses use to form relationships with their customers?
Contracts are for building relationships
One of the primary purposes of a contract is to form a legally binding relationship between two parties and to form any kind of relationship, communication and trust are key. Documents and contracts drafted in legalese are not the best at facilitating open communication unless both parties are familiar with the terminology used. In fact, for a non-lawyer, a lengthy document containing lots of legalese can seem like an anxiety-inducing lump of incomprehensible text. This does not create the healthiest premise to start a business relationship and in addition, these contracts can take considerably longer to negotiate because they have been drafted in a way that is unnecessarily complex. So if contracts are about building relationships, should we really draft them in a way that leads to confusion and frustration for both parties?
Is legal jargon all bad?
There are two facets to jargon – the first aspect of it involves communicating complex information to colleagues without the need to fully explain. The second aspect of jargon is to use words to add more credibility and/or complexity to one’s profession. To be entirely fair though, legalese is not the only form of jargon known to us. Every field has its own jargon. Banking is one of the most notorious ones. One of my personal favorite banking terms is “haircut” . It means the lender may accommodate the fluctuation of the market value of an asset and accept a lower amount as collateral. This term is interesting because it uses a very simple term to convey complex information but at the same time is not intuitively understandable for someone that is not familiar with banking jargon/buzzwords. Perhaps, one of the benefits of jargon is that it can facilitate communication between members of the same community but that does not speak much to its effectiveness when documents drafted by lawyers are meant to interact with non-lawyers. One of the first empirical studies comparing the effectiveness of legalese in comparison with plain language was done in 1987 and as part of it judges and research attorneys reviewed briefs written in legal language and plain language. The key findings of this research were that the briefs written in plain English were considered to be much more persuasive and effective, as well as the fact that lawyers who only write for other lawyers or judges may be perceived as less credible.
Legalese is not good for communication
Even if we grant the fact that there is limited utility to jargon, we need to ask the ever-important question – What does it do for business? Businesses all over the world have realized the importance of simplifying the way they communicate with customers by dropping the jargon and using plain language. A 2020 study found that plain language is more effective in gaining reader attention and trust. However, when it comes to legal documents the status quo remains less satisfactory especially in the case of documents that are attached to a product such that they are critical in explaining the customer their rights and obligations for example, user terms and conditions (T&Cs). The complexity of T&Cs is something that people are generally aware of to the point that we even have memes about how they are so lengthy that no one reads them:
While it makes for some great meme content, we need to do the slightly less fun part and ask a more serious question - How do businesses build customer trust when there is already an established culture around ignoring the document that establishes the relationship with their customers?
Simply building customer trust
Paradigm shift in the way businesses approach legal documents.
The approaches taken by both Apple and Google in the way they approach their privacy policies mark an important paradigm shift in the way that businesses today are approaching their legal documents. Contracts, policies or T&Cs are beginning to be seen as an integral part of the way companies market their products to build trust with their customers. This opens up many exciting avenues for lawyers to explore innovative techniques of legal design which are aimed at figuring out the most effective ways of communicating relevant information to customers, so we wave goodbye to those lengthy and complex contract terms that no one understands.