A short history of legal drafting (Part 2)

Katie Cook

ContractRoom

by Katie Cook

Modern legal language and the future of legal drafting

A push towards Plain English language and a push back?

Read Parts 1 and 3 of this aricle series here:

Part 1 - http://blog.contractroom.com/a-short-history-of-legal-drafting-part-1 and

Part 3 - http://blog.contractroom.com/innovative-approaches-to-standardizing-contracts 

law_desk_and_books.jpegOnly recently has there been a push to simplify legal writing - the Plain English Movement. The Plain English Movement began in the 1960s. Some have surmised its emergence was due to changes in the economic landscape. For example lawyers were no longer communicating only with other lawyers and law-makers no longer wrote only for a small educated and literate elite. Also the public and legal profession itself had begun to become increasingly intolerant of the archaic and unnecessary complexity of legal writing.

The Plain English Movement has somewhat changed the way law has been written. Here are some examples of some phrases written in traditional legal language versus a more modern plain english language approach. These examples  were provided by John Pease, Group Director of Governance at St. John of God Health Care in Perth, Western Australia.*

Traditional Legal Language

Plain English Language

The following summary is qualified in its entirety by the more detailed information contained elsewhere in the prospectus.

 

This summary highlights some information in the Prospectus

Each certificate will represent an undivided interest in the trust and the interest of the certificate holders of each class or series will include the right to receive a varying percentage of each month's collections with respect to receivables of the trust at the times, in the manner and to the extent described herein, and with respect to any series offered hereby, in the Related Prospectus Supplement.

The certificate holders will receive interest and principal payments from a varying percentage of credit card account collections.


The push for plain english in legal drafting continues today. However, archaisms remain in the law (as can be seen from the examples of drafting provided earlier in this article). An article by Assistant Professor-in-Residence at the University of Nevada Las Vegas’s Law School, Lori D. Johnson in that university’s publication, “Scholarly Commons”, considers that there are some “magic phrases” in legal writing that should be respected and left untouched. She calls them "terms of art".**

She writes:

“...[W]here the redrafting of a traditional term of art, a phrase that stands as heavily-interpreted legal shorthand for a particular concept, would potentially undermine an attorney's efforts to most effectively advocate for his or her client's desired outcomes in a transaction, the traditional term of art should be retained. These terms of art exist as more than needlessly convoluted jargon meant to elevate legal discourse beyond the comprehension of the layman. Rather, they serve as a means of lending credibility and persuading audiences within an established discourse community.”

Some examples of terms of art noted by Assistant Professor Johnson include:

  1. Time is of the essence” which is a term used in many contracts to convey that fulfilling obligations under the contract on time is material i.e. if something is not done on time by one party there is deemed to have been a breach of contract; and
  2. The “Pari Passu Clause” which is a term used in inheritance clauses as well as lending and bankruptcy proceedings. It means that distributions will be made equally and without preference.

More recently there has been a move towards “standardization of contractual language”. This movement advocates using standard language for contractual clauses that have the same meaning. Perhaps the sentiment that there are some phrases in legal language that should remain untouched as explained by Assistant Professor Johnson is one of the reasons for this development. In the next article about the history of legal drafting, the final one in this series, I will consider more closely the reasons why this movement towards the standardardization of contractual language has come about and then some of the ways you can get involved in the process of standardizing contractual language.  

ContractRoom, www.contractroom.com, is a negotiation and contract management system, and is a proponent for the standardization of contractual language. To learn more about how you too can “negotiate less, agree more” schedule a live, free demo by clicking here: Request Demo

* Plain English: A solution for effective communication, John Pease, 9 November 2012 - http://acla.acc.com/documents/item/1065

** “Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices”, Lori D. Johnson, 2015 - “Scholarly Works”, University of Nevada, Las Vegas William S. Boyd School of Law - http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1920&context=facpub

About the author

Katie Cook

Katie Cook

Katie Cook is the Director of Marketing, Communications and Legal Standards at ContractRoom. Originally from the east coast of Australia, she has a background as an Attorney having practiced in both public and private practice in Brisbane and Melbourne. While working as an Attorney Katie completed studies in journalism and is now combining her legal and writing skill sets in her role at ContractRoom.

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