Legal language: a rant
Feb. 17th, 2015 08:58 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
blatherskiteRobin Williams tells what is probably my favorite lawyer joke ever (paraphrased):
Q: How are lawyers different from rats?
A: In three ways: First, there are more lawyers. Second, there are some things even rats won’t do. Third, nobody objects to performing medical experiments on lawyers.
As you can probably infer, I don’t have much respect for the legal profession or much liking for lawyers. This feeling was reinforced by a recent incident in which a client asked me to sign a contract that was required by their employer (a university). I can’t share the details with you because of confidentiality considerations, but basically the contract was designed to shift all risk and all liability for any problems onto me, and to free the university of the obligation to pay me if certain unspecified conditions occurred; quite literally, one clause implied that if (for example) the provincial Ministry of Education unexpectedly slashed university budgets by 50% during the contract term, the university would not be legally required to pay me due to circumstances beyond their control. I was told that the clauses were required by the university's insurer and were not negotiable.
Sorry, no. This will not stand. I refused to sign the contract. Stay tuned on whether this will cost me a large amount of lost income.
Some of my objections to legal language relate to professional esthetics. I’ve spent 53 years mastering the use of the English language, which I consider a thing of beauty and an astonishingly powerful tool for clear communication. The legal language I’ve been forced to deal with over the years (both studying it in university to provide context for forest management and in various personal contracts over the years) strikes me as at best inelegant, and at its worst, incomprehensible. I say this wearing my English expert hat; I can only imagine the problem is worse for non-experts who lack advanced English skills. I've been told repeatedly that the point of this convoluted jargon is to ensure clarity and precision of word use, but legal language fails the most basic tests that would justify this argument.
Consider, for example, AECMA Simplified English, which was designed to ensure clear communication of complex technical concepts to audiences from diverse educational and linguistic backgrounds, around the world. Surprisingly, it works pretty well despite the challenges of that context.
Yet legal language fails to rise to that standard. Interpretations of even seemingly standard wording within a single country, within a single highly educated group of professionals, vary widely. This is why so many contracts are challenged in court and why you hear so many anecdotes about legal loopholes: the wording does not communicate sufficiently clearly that it provides a sound basis for mutual understanding. As a result, misunderstandings arise, leading to expensive and time-consuming lawsuits.
The concept of precedent, which I keep confusing with jurisprudence (my favorite one-word oxymoron), provides additional evidence that legal language is not nearly so clear as its proponents claim. Briefly (and thus, doing some injustice to the concept), the notion is that the interpretation of a law that has been achieved in court, usually under adversarial conditions, should form the basis for future interpretations of the same law. (For the sake of simplicity, we’ll ignore the problem caused by overlapping and contradictory laws, which is serious and pernicious.) I have no objection to the principle of relying on the wisdom of really smart people who have previously investigated an issue at great length. Seems perfectly reasonable. What bothers me as a professional communicator is that this process of rigorous problem definition and peer review of the solution is not the basis for creating the laws in the first place; if it’s necessary to rely on precedent rather than a simple reading of the law, then it seems to me the law is inherently unclear and should be changed. Clear, professional communication should be clear in and of itself, without requiring volumes of case law to clarify its meaning. Anyone who is paid hundreds of dollars per hour to create clear, unequivocal writing should be able to do much better.
This raises the question of why legal language seems to be so convoluted and incomprehensible despite the expensive education and rigorous training of those who write this jargon. Some of this is just a manifestation of Sturgeon’s Law: in any profession, most people will be poor writers. To misquote Garrison Keillor, most are worse than average, and lawyers are not immune to this seeming law of nature. But I think the problem is simpler: Lawyers are paid by the hour rather than by the job, so they have no incentive to be concise and clear; on the contrary, they have a strong disincentive to do so, since that would greatly decrease their takehome pay.
The final problem with lawyers that I'll go into today is ethical: I have grave reservations about any system that is designed to be comprehensible only to an elite priesthood rather than to the people it is designed to serve and protect. Nowadays, even lawyers have to specialize before they can master their preferred branch of law (e.g., family vs. criminal law). This means that few lawyers or judges--possibly none--thoroughly understand the whole legal system of their country. If lawyers cannot do this, then how can the ordinary citizen be expected to comply with their country’s laws? Any system that by its very nature prevents citizens from obtaining a comprehensive understanding of their basic rights and responsibilities as citizens is not a justice system: it is an injustice system. The problem is exacerbated by a tendency to spawn new laws (and new precedents) to deal with edge cases (rare occurrences) rather than focusing on developing and applying general principles that provide insights into how to deal with edge cases.
I don’t mean to trivialize the problems that lawyers face. Clear communication is difficult in the extreme, even for professionals. In adversarial situations where serious ethical issues often arise, the communication becomes even more difficult because complex problems rarely lend themselves to simple explanations. And one thing I’ve learned as a writer (and all writers eventually learn this), is that no matter how clear you think your writing is, a significant proportion of your audience can be relied on to interpret it differently than you intended. This is inherent to communication, and the only good solution for situations in which the correct meaning is crucial is to find ways to error-proof the writing. For writers, the solution is to hire a good editor, and sometimes (if you're lucky) to have your writing reviewed by audience members who will be forced to use it. In the context of law, one solution might be to start with a clear description of the intention of a law, with examples that illustrate those intentions. Those intentions and examples should then be vetted by experts, and tested rigorously in university classrooms, professional conferences, and other forums. Only then should the law or regulations that implement the intentions be implemented. But then it can be written with some confidence that it will work reasonably well. If any lack of clarity emerges, it should be soluble by referring to the statement of intent and examples. Contract law should also be managed under the same principles.
A final, more radical suggestion, would be to insist that legal language be comprehensible to the average citizen--and ideally, to the below-average citizen, since they are the ones most likely to need more help seeking protection under the law. To borrow a tool from the lawyer’s toolkit, I would note that there is a powerful precedent for this suggestion: the Plain Writing Act of 2010 takes as its fundamental principle “that federal agencies use clear Government communication that the public can understand and use”. That’s a great start. Now it’s time to apply the same principle to the whole legal system, and return some control over the law to ordinary citizens. There would undoubtedly still be cases in which a lawyer's advice was needed, since life is often complex. But at least in most simple cases, citizens could understand the law and their rights without requiring expensive legal advice.
Q: How are lawyers different from rats?
A: In three ways: First, there are more lawyers. Second, there are some things even rats won’t do. Third, nobody objects to performing medical experiments on lawyers.
As you can probably infer, I don’t have much respect for the legal profession or much liking for lawyers. This feeling was reinforced by a recent incident in which a client asked me to sign a contract that was required by their employer (a university). I can’t share the details with you because of confidentiality considerations, but basically the contract was designed to shift all risk and all liability for any problems onto me, and to free the university of the obligation to pay me if certain unspecified conditions occurred; quite literally, one clause implied that if (for example) the provincial Ministry of Education unexpectedly slashed university budgets by 50% during the contract term, the university would not be legally required to pay me due to circumstances beyond their control. I was told that the clauses were required by the university's insurer and were not negotiable.
Sorry, no. This will not stand. I refused to sign the contract. Stay tuned on whether this will cost me a large amount of lost income.
Some of my objections to legal language relate to professional esthetics. I’ve spent 53 years mastering the use of the English language, which I consider a thing of beauty and an astonishingly powerful tool for clear communication. The legal language I’ve been forced to deal with over the years (both studying it in university to provide context for forest management and in various personal contracts over the years) strikes me as at best inelegant, and at its worst, incomprehensible. I say this wearing my English expert hat; I can only imagine the problem is worse for non-experts who lack advanced English skills. I've been told repeatedly that the point of this convoluted jargon is to ensure clarity and precision of word use, but legal language fails the most basic tests that would justify this argument.
Consider, for example, AECMA Simplified English, which was designed to ensure clear communication of complex technical concepts to audiences from diverse educational and linguistic backgrounds, around the world. Surprisingly, it works pretty well despite the challenges of that context.
Yet legal language fails to rise to that standard. Interpretations of even seemingly standard wording within a single country, within a single highly educated group of professionals, vary widely. This is why so many contracts are challenged in court and why you hear so many anecdotes about legal loopholes: the wording does not communicate sufficiently clearly that it provides a sound basis for mutual understanding. As a result, misunderstandings arise, leading to expensive and time-consuming lawsuits.
The concept of precedent, which I keep confusing with jurisprudence (my favorite one-word oxymoron), provides additional evidence that legal language is not nearly so clear as its proponents claim. Briefly (and thus, doing some injustice to the concept), the notion is that the interpretation of a law that has been achieved in court, usually under adversarial conditions, should form the basis for future interpretations of the same law. (For the sake of simplicity, we’ll ignore the problem caused by overlapping and contradictory laws, which is serious and pernicious.) I have no objection to the principle of relying on the wisdom of really smart people who have previously investigated an issue at great length. Seems perfectly reasonable. What bothers me as a professional communicator is that this process of rigorous problem definition and peer review of the solution is not the basis for creating the laws in the first place; if it’s necessary to rely on precedent rather than a simple reading of the law, then it seems to me the law is inherently unclear and should be changed. Clear, professional communication should be clear in and of itself, without requiring volumes of case law to clarify its meaning. Anyone who is paid hundreds of dollars per hour to create clear, unequivocal writing should be able to do much better.
This raises the question of why legal language seems to be so convoluted and incomprehensible despite the expensive education and rigorous training of those who write this jargon. Some of this is just a manifestation of Sturgeon’s Law: in any profession, most people will be poor writers. To misquote Garrison Keillor, most are worse than average, and lawyers are not immune to this seeming law of nature. But I think the problem is simpler: Lawyers are paid by the hour rather than by the job, so they have no incentive to be concise and clear; on the contrary, they have a strong disincentive to do so, since that would greatly decrease their takehome pay.
The final problem with lawyers that I'll go into today is ethical: I have grave reservations about any system that is designed to be comprehensible only to an elite priesthood rather than to the people it is designed to serve and protect. Nowadays, even lawyers have to specialize before they can master their preferred branch of law (e.g., family vs. criminal law). This means that few lawyers or judges--possibly none--thoroughly understand the whole legal system of their country. If lawyers cannot do this, then how can the ordinary citizen be expected to comply with their country’s laws? Any system that by its very nature prevents citizens from obtaining a comprehensive understanding of their basic rights and responsibilities as citizens is not a justice system: it is an injustice system. The problem is exacerbated by a tendency to spawn new laws (and new precedents) to deal with edge cases (rare occurrences) rather than focusing on developing and applying general principles that provide insights into how to deal with edge cases.
I don’t mean to trivialize the problems that lawyers face. Clear communication is difficult in the extreme, even for professionals. In adversarial situations where serious ethical issues often arise, the communication becomes even more difficult because complex problems rarely lend themselves to simple explanations. And one thing I’ve learned as a writer (and all writers eventually learn this), is that no matter how clear you think your writing is, a significant proportion of your audience can be relied on to interpret it differently than you intended. This is inherent to communication, and the only good solution for situations in which the correct meaning is crucial is to find ways to error-proof the writing. For writers, the solution is to hire a good editor, and sometimes (if you're lucky) to have your writing reviewed by audience members who will be forced to use it. In the context of law, one solution might be to start with a clear description of the intention of a law, with examples that illustrate those intentions. Those intentions and examples should then be vetted by experts, and tested rigorously in university classrooms, professional conferences, and other forums. Only then should the law or regulations that implement the intentions be implemented. But then it can be written with some confidence that it will work reasonably well. If any lack of clarity emerges, it should be soluble by referring to the statement of intent and examples. Contract law should also be managed under the same principles.
A final, more radical suggestion, would be to insist that legal language be comprehensible to the average citizen--and ideally, to the below-average citizen, since they are the ones most likely to need more help seeking protection under the law. To borrow a tool from the lawyer’s toolkit, I would note that there is a powerful precedent for this suggestion: the Plain Writing Act of 2010 takes as its fundamental principle “that federal agencies use clear Government communication that the public can understand and use”. That’s a great start. Now it’s time to apply the same principle to the whole legal system, and return some control over the law to ordinary citizens. There would undoubtedly still be cases in which a lawyer's advice was needed, since life is often complex. But at least in most simple cases, citizens could understand the law and their rights without requiring expensive legal advice.