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Contract Writing Best Practices: Balancing Plain Language and Legalese

Nov 25, 2016 6:30:00 AM

03 150p-01.jpgContracts have a well-known reputation for being dense, technical, and even completely incomprehensible–and historically, people expect contracts to be baffling fine print that can only be interpreted by attorneys.

But is that the way that contracts should remain? And if not, how should we introduce more clarity into contracts without sacrificing important legal terms, specifics and details?  

We are in a time when the value and use of contracts is changing rapidly; currently, they are seen less as just  a way to limit risk and more as a collaborative tool that can buoy everyone involved. But it will be key, as we move forward to balance plain language with legalese.

Why Does Legalese Exist?

There are both some valid reasons and some not-so-valid reasons that legalese appears in the text of most contracts.

The two primary reasons that legalese is utilized in contracts is for protection and specificity. If your contract is written to protect your interests and minimize risk, you must be sure to close all loopholes and thoroughly define each of your terms. For example, if you do not correctly define the word employee, you run the risk of unfairly losing a future legal battle, which could have severe consequences.

The other reasons that legalese persists in our contracts is less reasonable: it is simply tradition. Contractual language has been copied from previous attorneys literally for centuries, and attorney culture sometimes promotes the use of intentionally complex or convoluted terms, sentence structures, and documents. In other words: it is a habit of the profession.

Introducing Clarity Into Contract Writing

How should we approach the issue of legalese in contract writing in a thoughtful and productive way? While attorneys and businesspeople alike are still constructing solutions, the following strategies are already being applied:

  • Utilizing hyperlinking. Old school contracts have to pause to define legal terms, parties, and other technical words. Now, contract writers are experimenting with hyperlinks that send readers to a different screen to read the legal definitions of words and terms. This allows sentences to be simpler and the contract itself to be shorter and easier to read.
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  • Finding the right attorneys. Some attorneys and law firms are more progressive than others when it comes to moving past legalese and focusing on clarity. When choosing an attorney, legal team, or law firm, ask about their philosophy and their process when it comes to contract writing and choose someone who aligns with your needs.
  • Using design to your advantage. Simplifying the language isn’t the only way to make contracts easier to read. Taking simple steps like shortening paragraphs, numbering paragraphs, and even, in some cases, adding visuals, can make your contract more readable and accessible.
  • Moving toward standardization. Even though the standardization of contract language is a big reason that legalese originally crept into contracts, it can also be used to help eradicate it.
  • Putting in the effort. Worrying about the language of your contracts might not be in the forefront of your mind in a high-pressure work environment. But taking steps to reduce legalese in your contracts can not only save your time and trouble in the long run, it can also help you transform your contracts into collaborative tools.

Finding A Balance

Creating contracts that are both legally solid and crystal clear is a true challenge, but it is also worth the ongoing effort. As attorney and contract expert Kingsley Martin writes, “contracts require a complex balancing of business terms to maximize value and legal terms to minimize risk.” With thought, and by applying some of the concepts above, contracts have a brighter, clearer future, without so much legal talk, but with the same security.

This Month On Agreement Blog: The Changing Art of the Contract  

This November, we are focusing on the art of contract writing and contract writing best practices. Follow along as we examine the history of the contract as well as look into its future, from why contracts were initially developed to how companies are now using these documents to collaborate, connect, and flourish.

Subscribe to our blog today as we ask the following questions about content writing best practices:

  • Is standardization of contractual language a good idea?
  • What are the golden rules of drafting?
  • What makes a good contract?
  • How can we successfully assess contract writing?
  • How does contract software affect contract writing?

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