ARCHAIC language in contracts is unhelpful, writes Iain Drummond
The legal profession is changing; it is embracing the use of modern technology, streamlining traditional processes and improving transparency to make services more user-friendly.
These developments are all intended to make legal services fit for the 21st century. Why is it then that some lawyers insist on clinging on to archaic language?
Amongst the worst culprits are litigation lawyers. Court papers are often liberally sprinkled with Latin terms, supposedly “brevitatis causa”, or to put the same phrase into plain English – for the sake of brevity. But brevity, simply meaning briefness, can be achieved without the historic Latin tags by the use of simple language; the kind which does not require a legal dictionary to interpret.
There is an argument that a certain legal shorthand has developed over the years and it is easy for lawyers to trot out the same terms as they are readily understood by the judge.
However, these terms often need to be explained to clients, even the most sophisticated of commercial clients, as they are not used in everyday speech or in standard business communications.
Although this is perhaps less convenient for the lawyer, taking a bit more time to think about the meaning of the jargon used and breaking it down into plain English would make the process much more accessible for the client who, after all, is the one who has the greatest interest in the outcome of the proceedings.
Although court proceedings are an obvious target, the same criticism can be levelled at the overly complicated language often found in legal contracts. The purpose of a contract is to set out the obligations on each party, along with the consequences if those obligations are not fulfilled.
The use of unclear or overly “fancy” language only leads to confusion as to exactly what the parties’ obligations are. In some cases, this confusion leads to court proceedings – which leads in turn to even more complicated language!
A fundamental requirement of a legal contract is that it can be easily understood, not only by the lawyers who have prepared it, but by those who will be bound by its terms. Contracts should use familiar language where possible, instead of more elaborate words that might not be fully understood, for example, “end” instead of “expiry”.
Old fashioned words such as “aforementioned” and “thereto” are traditionally used in legal drafting but can, and should, be easily avoided. Another lawyerly habit is to include unnecessary words which hinder the reader in understanding the document as quickly as possible.
For example, there is often needless repetition in commonly used phrases such as “null and void” or “cease and desist” when actually either of the words would do fine on its own.
A clear and concise document written in plain English is not only more readily understood by its users, but the process of drafting a contract in clear terms is more likely to flush out any misunderstandings at the outset – rather than leaving ambiguity about precisely what each party is expected to do.
There are some exceptions to the general rule that simple language is the most effective. For example, legal drafting is subject to certain conventions, whether in litigation documents or contracts. These conventions ought to be followed where they allow a clearer and more accurate meaning to be conveyed than the equivalent plain words of ordinary speech would; after all, accuracy of meaning is the objective of legal drafting.
Formal communications from lawyers should also avoid using a slangy or conversational style that would undermine the gravity or credibility of the message. Whilst a balance is to be achieved, there should be no place for “hereto”, “herein”, “hereof”, “herewith”, “hereunder” - or, the worst of all “hereinbefore”.
Language naturally evolves over time but it is time that the legal profession’s use of language evolved too.
• Iain Drummond is a partner with Shepherd & Wedderburn www.shepwedd.co.uk