Business owners are frequently heard to complain about the way legal documents are drafted and the language they use. Why are they so wordy and complicated?
There are still lots of examples of unnecessarily long, complicated and difficult to read documents out there. All too often the authors could actually have made the documents a lot shorter and easier to understand. That said, standards are improving in English law at least, and where documents remain complex, there are sometimes reasons why it’s not always possible to simplify them – or at least not to the extent clients would like.
Let’s start at the beginning. When I teach young lawyers about drafting documents, I start by emphasising the three ‘C’s’ which govern the principles of drafting: the document you produce must be Comprehensive, as Clear as possible, and as Concise as possible.
Take entire agreement clauses – the clause in most contracts which says the contract contains the entire agreement and understanding between the parties. And so it should: no side letters; no “gentlemen’s agreements”; no “everyone understands what it means”; no “it’s obvious”. The document must be Comprehensive. It must contain all the terms agreed or understood by the parties. That is the first and most important rule.
After that (and I stress after that) it should be Clear. There is no excuse for using the archaic language and complex sentence structure so many lawyers use, and no excuse for not punctuating a document properly. But many corporate and commercial deals are extremely complicated, and trying to set them out in words, comprehensively, accurately and without loopholes can require considerable ingenuity: often, it is simply not possible to express it in such a way that it sinks in first time. Complicated deals remain complicated and you have to read them for them to be Clear.
Finally, every client’s plea: “Keep it short!” Agreed. Don’t use three words where one will do, or waste space defining things that everyone understands anyway. But the document has to be Comprehensive, and if the deal is long and complicated, the document recording it will be as well. Remember that Concise doesn’t always go with Clear. You can say “The hereinbefore recited covenant” or you can say “The agreement referred to in paragraph x above.” Which do you prefer? The second (clearer) version is actually longer.
So, first – Comprehensive; second – as Clear as possible; third – as Concise as possible. As a client you should expect this from your lawyer and if you are concerned that documentation is running to reams of impenetrable text, do raise it. Sometimes it might be unavoidable but where possible it should not be overwhelmingly complex.