19 Feb “Plain English” Contracts
As a small business lawyer, I am often asked, “Do you write plain English contracts?” If I am feeling particularly snarky and I know the person well enough to be snarky, I might shoot back with “well, I don’t write contracts in Spanish, Latin, or Swahili.” But usually, I try to be a bit more professional with people and reply, “I write contracts that suits your needs and that can be understood by normal people .” (Which kind of implies that lawyers are not “normal” which is, itself, an interesting debate.)
But snarkiness aside, the Plain English request is common enough to be addressed. Many contracts that business owners need written by most lawyers are often so complex and riddled with legalese that the contract is incomprehensible. I am a big proponent of what Ken Adams preaches, write contracts that clearly state the terms of the deal. Ken discusses the many ways in which contracts are confusing and suffer from the same drafting mistakes I see.
Confusing or incomprehensible contracts signal one of two things:
1). The lawyer does not study how to write effective contract prose (even if they are very good a writing persuasive prose in arguments to a court); or
2). The lawyer forgot that they are not writing a contract for other lawyers, but for business owners and their customer.
Here are a few of the most common objections I have heard lawyers make when it comes to drafting clearer contracts.
Lawyer: “The concepts for your contract are too complex to be explained and written simply.” Balderdash! The single most common reason why contracts are complex has more to do with intentionally complex sentence structure than complex ideas. Even if the subject matter is complex, good lawyers should be able to explain it and write about it in a contract.
Lawyer: “Drafting in Plain English requires more time explaining the contract to clients and opposing parties.” Whaaaa??!!! When I first heard this objection I actually had to pause to parse that notion. If you use Plain English understandable to your audience, your contract should be understandable and not need further explanation. When a lawyer says to you, “Basically this term means X,” your response should be “Why don’t you just say that in the contract?” Complex contract language is almost like an attempt to pad the bill because a lawyer has to expend time doing three things: time to draft the first complex draft, time to explain the complex draft, and then time to amend the complex draft to make it understandable. Why pay for that?
Lawyer: “Contracts are technical documents and there is no substitute for some of the words we use.” Nonsense! A contract is a written expression of a business relationship. It is not a technical document to be steeped in technical legalese. Every business has its own jargon, but the jargon that appears in contracts should be the jargon of the parties, not the jargon of the lawyers. There may be some necessary legal terms, but they use should be used sparingly and only when necessary.
Lawyer: “Clients like all this archaic and technical language in their contracts, it makes them look sophisticated.” Pure bunk! Think about it for a second, would you rather have a contract that gets you business or at least speeds the process of getting new business? Or would you rather have a a contract that is so complex that it costs you business because customers have to consult their lawyers to understand the contract? A contract is a tool, not a branding statement of your “sophistication.”
Lawyer: “There are so many risks in this transaction, we have to address all those risks.” Malarkey! The premise of this argument is true, many transactions have a fair number of risks, but risk assessment and allocation does not require complex language.
Lawyer: “Plain English makes contacts longer and the client doesn’t want to pay for a longer contract.” Hogwash! Most clearly drafted contracts usually have fewer words than the complex contracts. Those provisions that may need more words to explain complex ideas are offset by simple provisions expressed in fewer words. A good example I often see: “In the event of” which is four words and five syllables can simply be written as “If,” one word, one syllable and two letters for the exact same concept. Clients are paying for a contract that meets their needs and can be understood.
The Flesch Reading Ease Scale.
The Flesch Reading Scale is a tool that can help you push lawyers to do better with their drafting. The Flesch Reading Scale was developed by Dr.Rudolph Flesch and lawyer and Ph.D in English who developed a formula for determining how hard a document is to read. The scale goes from 0-100. The lower the number, the more difficult it is to read the document. Much lower scores are possible (well into the negative numbers) and somewhat higher scores are possible (Dr. Suess’ Green Eggs and Ham comes in with a Flesch score of 116). To get the score, you count the number of words, the number of sentences, and the number of syllables in a passage and then plug it into a formula:
Readability=206.835 – (1.015(total words/total sentences)) – (84.6(total syllables/total words))
Here is an example taken from a sample contract form offered to members of a national organization:
Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
This paragraph is 135 words long, contains 5 sentences, and contains 251 syllables. So doing the math:
X= 206.835 – (1.015(135/5)) – (84.6(251/135))
X= 206.835 – (1.015(27)) – (84.6(1.86))
X= 206.835 – 27.405 – 157.356
The Flesch Reading Ease Scale is this:
90-100 : Very Easy (5th grade level)
80-89 : Easy (6th grade level)
70-79 : Fairly Easy (7th grade level)
60-69 : Standard (8th-9th grade level)
50-59 : Fairly Difficult (10th-12th grade level)
30-49 : Difficult (College level)
0-29 : Very Confusing (graduate school level)
A score of 65 is considered plain English. Scores below zero are possible and are generally considered incomprehensible. Our sample has a score of 22.074 and falls into the very confusing range.
There are some states that required certain kinds of consumer contracts (such as some insurance policies) to be written with a Flesch score of 65 or higher. I am not saying that contracts should be written for upper middle school students,but they need not be very confusing either.
So, the next time you get a contract from a lawyer, apply the Flesch Ease of Reading Scale just to see how complex your contract actually is. Does it suit your needs? Is it understandable to you and your customers/potential customers? If not, ask the lawyer to fix it and don’t pay the full bill.
If you are looking for “plain English” contracts, give me a call.I aim for a Flesch score in the 45-50 range and tailored to suit your business needs.