Poor writing, not specialized concepts, drives difficulty with legal language

> The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school purposes on the residence homestead of a person who is elderly or disabled to reflect any statutory reduction from the preceding tax year in the maximum compressed rate of the maintenance and operations taxes imposed for those purposes on the homestead.

I have an Ivy League education and I still could hardly understand it, and I still think some of the language is ambiguous (i.e. I think "the reduction of the amount of a limitation on the total amount" can be interpreted both ways).

https://www.dallasnews.com/news/watchdog/2022/03/25/the-lang...

I'm also married to an Anglosphere lawyer (which gives me lots more exposure than I might have guessed to the idiosyncrasies of the profession).

In my experience, I very much agree with the headline (and abstract) here, but would emphasise that the US is the worst for archaic language, creating a worse barrier to entry. Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation, while the US has stuck to "this language is proven through precedent" more stubbornly than anywhere else. This seems to be particularly prevalent in IP law, although that might be my tech bias showing.

I would very much argue against those (even in this thread), that say that the lay-person isn't the intended audience for lots of contracts, particularly for T&Cs where they are often written by a contracts lawyer, for a contracts lawyer or judge, but should ABSOLUTELY be written for the lay-person to understand.

Anyway, I think the legal profession can & should do better.

To simplify contract language, the biggest bang for the buck comes from SSSP: Short, Single-Subject Paragraphs, which are much easier to read; to review and revise during contract negotiations; and to reuse in other contracts.

(It's not unlike modularity and orthogonality in software.)

For more ranting on that subject — with some pathological before-and-after examples — see my online course materials (this version isn't pretty; I'm almost done refactoring it). [1]

[0] https://dilbert.com/strip/2008-08-28

[1] https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...

I should know, others usually like pointing out how terrible I am at explaining things. And I think I know why.

When I make a naive attempt at describing a complex, interconnected concept, such as a piece of math, or a program that does a thing I start with a mental picture - a graph of interconnected concepts. Then I try to describe the picture - the same way one would describe a painting. I describe each visible part separately, often in great detail, then I try to describe the links and interconnections between parts.

This sort of 'accurate' descriptive style naturally leads to huge backreferences, and people usually have a ton of trouble following along.

However I think there's a way of getting your point across - one basically needs to reproduce the thought process of how one would come up with the given model given the real world constraints, illustrating the issue and its proposed solution with examples. It is often said that people are much better at deriving the rules from a few examples than the other way around.

However this sort of descriptive style takes both a lot of effort, and usually is less precise, which often is not acceptable, such as in the case of contracts or computer code.

For seismic, the Canadian code is easy enough to understand that teachers use it in college instead of manuals or notes. To calculates something (eg. a specific wind load or seismic load), you just read the section from top to bottom and follow the recipe. Things are actually placed in the order that an engineer would use them.

With the US code, you have to deal with triple negations and 80% of the usefully information is presented as references to other sections. It's really not fun trying to understand it when a single sentence will link you to 8 paragraphs, 6 of which are in a completely different chapters or sub-chapters. And as you can imagine, these 8 paragraphs will also have their own references to other part of the code. It's a complete mess that is impossible to follow unless you write your own summary and/or take screenshots and rearrange them in order.

You end up with a situation where even experienced engineers can't understand it and have to rely on notes from colleagues, college textbooks, calculation examples, or they just blindly follow the design software they bought.

Working the support line for a high end structural analysis and design software has really opened my as to how incompetent and lazy a lot of the senior engineer from highly reputable firm can be. It would be a lot safer for the public if the "easy to understand" version of the code came from those who wrote the original. I suspect it's the same in other professions too.

There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said").

For example:

A TCP packet, comprising TCP header and body, where said header comprises etc. etc.

-- or --

A TCP packet, comprising TCP header and body, where the header comprises etc. etc.

The second is absolutely as valid as the first. "The" is just as good as "said."

Another example:

What is claimed and desired to be secured by US Letters Patent, is

-- or --

I claim

The first one is just pretentious. It adds nothing.

Maybe you don't like "comprising"? Well, that one is specialized language.

A chair, comprising four legs, a seat, and a back

-- or --

A chair, consisting of four legs, a seat, and a back

The second is not just as good as the first. "Comprising" allows for the chair to have arms, while "consisting of" does not.

I've been trained in patent legal terminology, which isn't that bad. Patent documents are still frequently difficult to understand. I have one application on my docket where I'm going to have to rewrite one of the claims to understand what it's saying, and no, that shouldn't be necessary... And the situation with patent documents is worse than the situation described in the abstract as many attorneys write vaguely.

The argument that "lawyers are the intended audience" isn't legally sound either, as under 35 USC 112(a), patents are supposed to "enable a person skilled in the art [...] to make and use the [invention]". If an attorney argues that patents aren't supposed to be understood by non-attorneys, they're wrong, full stop.

Unfortunately, I'm not really allowed to do 112(a) enablement rejections. I'd do those sorts of rejections frequently if I could, but I think I can count the number of times I've done 112(a) enablement rejections on one hand. The law in other countries seems more strict than in the US. I'm told that Japan in particular takes enablement a lot more seriously than the US does.

As a result, language that was written a long time ago is still circulating in modern agreements. Note: I'm not defending any of this. As a lawer-turned-founder, I try to keep my agreements as short as possible!

In addition to a format guide, every journal should specify a style guide (like the NY Times does), so the reader can expect a highly structured layout AND argument. (Explanatory content can go in 1+ supplement docs.) I'd even like to see standards for the use of emphasis (like bold, italics, colored text), especially for first mention of term/names that occur repeatedly.

The sooner we can make all professional writing trivial to skim, the better.

If you look at our law books, they are almost all words/text. Paragraphs and paragraphs of it. Yet in a lot of areas of law or regulation, graphical explanations are rarely used when they could help clarify immensely. To use a simple example, just think of when a map is needed -- and whether you would try to describe that by text.

I also have an analogy in my mind that when you ask a typical programmer to explain something, they start showing you the code. Only a skilled rare few have a picture in their mind that they can draw you the relationship between the things they have written (and start a chat based on that).

Lawyers / politicians are by default writing in long, wordy, text to try to lay out complicated systems. This is often not ideal, when a diagram or schematic of what you are legislating to have happen would be more clear.

It also produces an effect where laws tend to just bolt on more text, and have little contextualization of what already exists or what is being modified. And I also have a feeling it tends to miss the problem cases. I seriously believe our hundred books of CFR/laws are a significant result of this.

If people were forced to summarize how a proposed law interacts with current laws, etc. I think there would be more hesitation and better thought about what is being enacted.

> "Each Party shall endeavor to ensure that energy-related activities that do not result in a facility exceeding its previously authorized capacity and that are limited to performing maintenance work on, or ensuring the safety of, existing cross-border infrastructure may be undertaken under the initial authorization and shall not require a new authorization."

Unpacking all this is rather difficult. The intent appears to be ensuring that energy-related activities should not require periodic re-authorization by a regulatory body after an initial authorization is granted. An example would certainly help - a cross-border power grid interconnect, say.

The embedded clauses are of two different kinds. If our grid interconnect doubles its capacity, this would be a violation of the first (restrictive) clause, and would thus require a new round of authorization. Under the second (permissive) clause, one can shut down the grid interconnect for safety or maintenance reasons. Taking the grid interconnect offline to restrict supply and jack up prices would thus be a violation, although one could monkey around with this (see Russia shutting down Nordstream to Europe for 'maintenance' at present).

That's just one paragraph, the document is hundreds of pages of this kind of thing.

I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude.

I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble. We try to create loopholes for our future selves.

It seems like a misrepresentation to call “long-distance syntactic dependencies” in a legal document the same thing as poor writing when comparing to other genres of written English including those that are written for pleasure. When exploring law the question an individual usually has is “If I do X, does Y happen?”. But legal frameworks don’t cover individual situations, they paint broad strokes over the human experience.

General Terms of Art provide a vernacular English explanation for widely-used legal terms within the section. Example: "Joint tenants. A legal term meaning that the tenants not only hold a single undivided parcel together, but that ownership of the property passes to the other tenants if one tenant dies. If a tenant sells their interest, and the remaining tenants entered into a joint tenancy at the same time and on the same deed, the remaining tenants remain as joint tenants."

Specific Terms of Art describe terms of art used in the particular contract or act. An example would be "protected health information" or "covered entity" in the context of HIPAA.

Terms of Clarification are standard vernacular English terms that, for the sake of reducing frivolous navel-gazing, are defined precisely. An example would be "uniformed services" within Title 10, or "machine gun" in the Gun Control Act.

A layman could read the two terms of art sections and should be able to understand most statutes or contracts.

A lawyer familiar with the general terms of art could read the specific terms of art and understand most statutes or contracts.

Terms of clarification could be consulted only if the precise scope of a term becomes an issue.

What I learned: the written law is ambiguous, mostly intentionally. The reply at the time was that the legislators "set the direction" and it is up to political appointees at an agency, working with their staff, to write regulation based on the "intent of the Legislature."

The published regulations that implemented the law were written in such a way, that the references were actually circular, and the same term (noun) was used in two different places to mean two different things, without acknowledging that. I did as others suggested, and drew diagrams with notes to check the very very dense legalese in the regulations. My change was regarding that twice-defined noun, which they acknowledged by accepting the change.

Overall - what is said is not what is done -- the saying I heard in Sacramento was "never write what you can say, never say what you can imply, and never imply if you can nod or wink" What that means is cynical; that you habitually do not write what you really mean to do, knowing that it will be reviewed by your adversaries, and taken out of context to be used against you.

The regulations writing was adversarial, and the response from the agency involved was measured and ready for court, at every step. The default action in the public comment period is to ignore your comment, and they do that in most cases.

I also have occasion to sign off on a lot of health care-related agreements, and I find these to be very difficult: it's an emotional flashpoint for me, the documents are often presented in times of stress and the signature is extracted under some sort of duress.

Firstly, the health care facilities (and banks and others) now uniformly use electronic signature pads and they don't like to print the documents anymore. But if you insist, they will print them. This is a good pro forma procedure to force them to correlate what you're signing what what you've (presumably) read. But I've also found that it's nearly pointless to make a fuss about reading what you sign, because there's always a Swiss cheese of loopholes and convoluted phrasing that will confuse you.

Once a few years ago, I "carefully" read and signed off on a 3-page document for release of records, but no records were produced. (It failed silently, and the onus was on me to follow up.) Upon investigation, I found that the health care professional had prepared the document for me to authorize me to release records to me (rather than for the facility to release the facility's records to me). I attribute this to malice on his part - he was a jerk, and of course even after I read this document with a glaring error, I didn't catch it, either.

Nevertheless, don't let anyone shove an electronic signature pad in your hand before you've made an effort to read what you sign.

I've found it useful to read EULAs and TOS, though, for the simple fact that they include policies & procedures in case of dispute. If you have trouble with a service, you're supposed to know the steps for resolution, and if you haven't followed them, the service isn't under any obligation to hold your hand and walk you through it. The document often includes essential email and postal contact addresses, and I guarantee that you'll never find those contact addresses ever again if you don't print/save that document before ticking the "I agree" checkbox.

So I highly encourage you to make a folder in your cloud storage, or on your phone, and make liberal use of "Save/Print as PDF" for every TOS, EULA, and legal document that you sign or agree to. Eventually, you'll get into a situation, and you'll be thankful that you have recourse to the document you signed.

    int add(int a, int b) {
        return a + b;
    }
    
    
    int add(int a, int b) {
        if ((a > 0 && b > 0) && (INT_MAX - a < b)) {
            return INT_MIN + (b - (INT_MAX - a + 1));
        } else if ((a < 0 && b < 0) && (INT_MIN - a > b)) {
            return INT_MAX + (b - (INT_MIN - a - 1));
        } else {
            return a + b;
        }
    }

Which one is more robust?

Which one would you bet the future of your company on?

I offer that, sometimes, simplicity of expression is at odds with protection against edge cases.

Rephrased, even the PIs seem to have trouble parsing legalese. That doesn't invalidate the conclusion of the research, but it does highlight the need for some additional peer review.

Regular people are not meant to understand what it says and means.

If it was spelled out in plain simple English for everyone to read a lot more people would object to the terms and feel upset.

When it is obfuscated nearly to the point of encryption no normal person will be able to, or at least spend the time it would take to decrypt it.

This seems like a job where AI could be utilized to read legal language and output a plan English interpretation.

It also has to do with job security. You need lawyers to read them, because other lawyers write them.

I’m sure there are obscurantist

Could we have more rules that difficult to understand language isn't enforceable? Could courts do more to rule against contracts that have poor language?

Anyway, the letter was written in such lingo that on first reading it was as if my father owed Bob 10k. Some elderly person receiving such letter could have had a stroke.

Python:

  def has_legal_right(person: dict, right: str): -> bool
      assert person
      assert right
      #
      return NotImplementedError

  def have_equal_rights(persons: list): -> bool
      return NotImplementedError

  function hasRight(person, right) {
      console.assert(person);
      console.assert(right);
      // return true || false;
  }

  function haveEqualRights(persons) {
      // return true || false;
  }

... Therefore you've failed at the Law of Reciprocity.

At least one lawyer out there can write worth a damn, and (having read some godawful wording in contracts) I wish more would try.

I see CACs as footnotes, directly attached to the clause.

I’m not saying emojis and text-speak but most of the time writers shouldn’t reach for words or phases that they think sound impressive.

I've been a consultant reading legal documents hammered out between the senior partners and VPs of the supplier - the language is so straightforward a child could understand what each party is getting.

The political party of your choice in the county you live in should have a slate card of how to vote on all the measures.

At least in the UK (I moved here btw.). I signed two rental agreements, 3 employment contracts and refused one employment contract on the basis of poor content. Each legal text were 40+ pages, taking very long to process not just beacuse of the sheer size but the obscure phrasing and errors as well. Tiny aspects were added to each in obscure language that a common person is supposed to process and give full consent with legal consequences. With the rental agreements I had no choice but to sing as is despite repeated chapters and typos changing the meaning, also internal discrepancies. I had to live somewhere and there was not much choice, not in the given time. But the refused employment contract was so poor to the level of pathetic, that I had to refuse. Chapters with common language altered uncomprehensible old english legal text, dead references, same text repeated 3(!) times in different places and two kind of paragraphs repeated in 2 locations. It also contained detailed rules about checking tyre pressure on own car when being out on company business and the rules of chewing gum in the office and the consequences of causing damage by the improperly disposed bubble gum. Accepting all in full with the consequence of disciplinary proceedings. Their reasoning addding so many tiny details was that the lawyer suggested adding anything, just in case. Yet, as there are millions of such small details possible in life it was hopefully incomplete still, failing to regulate other very possible scenarios.

I am convinced that this urge to include as much as possible led to the very state of poor and erronous content. As the contract grew and changed throughout the years dead paragraph references, content altering typos, rushly wrote nonsense sentences, inconsistency and errors grew. Led to me being the first (which I am very very surprised about) refusing to sign after about 2 weeks of intense deliberation (plus some days of processing and a full day intense work I had on a 40+ item list about problems and errors above my persoanal wishes). Many of the suggestions went into the contract but others were not possible to change without paying the lawyer and some weeks of work and of course they did not want to deviate too much from the common content, accepting the new contract with everyoen else, so it became hopeless to get to agreement eventually.

If the contract was ca. 3-6 pages max, like in my previous positions from elsewhere in Europe, then it was not in this bad state as it was easier to maintain and also comprehend (like my rental agreement in Sweden being one page premade to standard, purchased in a bookshop). Less was more in this case.

My current contract is also 30+ pages, with an international company but with individual contracts for the various locations, naturally. Our new HR head in the continental Europe is amazed how big the UK contract is compared to the one used in her country. Also agreeing pure details here and there, prepared by a local solicitor hired. We had to have long discussions about the content similar to the case with the refused one, but with less errors and accepting some remaining issues tentatively until the text is altered later during the employment (with the involvement of lawyers).

The contracts I meet here are huge, filled with obsure text difficult to understand for the common people mandated to accept its content in full, also buggy as the consequence of the shear size. I feel the whole purpose is lost this way. Especially when those supposed to comply with each and every details (there is a clause saying violating any clause could allow summary dismissal) cannot understand everything, due to unclear text or buggy content. Additionally the process is long, laborous, and at the same time rushed through in a competitive situation.

I can safely say that I am pretty unhappy about the contractual procedures around me and cannot take those seriously, despite the legal consequences being very real.