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.
This doesn't make sense. The parties to the contract are presumably laypeople, and they have to understand it before they agree to it and sign it since one of the legal requirements for a valid contract is a meeting of the minds, meaning a common understanding between the parties of what each of them is agreeing to.
If you decide to try to bring a claim against your mortgage lender, will you have a lawyer read your mortgage agreement before you file suit? Surely.
Such agreements are already absurdly long for some of the most trivial services or products. The answer cannot become "be a lawyer or rich enough to afford retaining one".
Much of this country is set up by and for lawyers, and that has consequences.
Unfortunately that process is also costly and benefits greatly from lawyer involvement. It's a widely known problem that it's expensive to navigate the court system.
I think this focuses attention on the wrong thing.
A counterparty that is acting in good faith will not put absurdly long legalese in a contract, because if they are acting in good faith, it is in their interest to reach a genuine meeting of the minds with you, because fulfilling the contract will benefit both of you.
So the first question to ask is, is your counterparty acting in good faith? Are they genuinely trying to reach a win-win agreement with you, where both sides benefit? Or are they just trying to get whatever they can out of you, by hook or by crook, without caring whether you benefit?
If the answer to that is the latter, your best option is to avoid dealing with that counterparty at all. If a counterparty is not acting in good faith, no amount of legal analysis of contract language can protect you. (And that is why I avoid using products and services that have those absurdly long EULAs whenever possible.) And if a counterparty is acting in good faith, you should be able to reach agreement on reasonably simple contract language that a lay person can understand.
More precisely, the clients the lawyers are representing aren't acting in good faith because they are fine with their lawyers doing that. As your next remark suggests, this is indeed the current reality: legal instruments like contracts are not used to enable win-win agreements that create wealth, but as tools of predation. That's not how it's supposed to be, but it is, unfortunately, often how it is.
I disagree. First, many contracts are not drafted by lawyers. Mortgage notes, which you mention, usually are; but, for example, a real estate sales contract in most states is standard boilerplate language that was drafted by realtors, not lawyers.
Second, saying that lawyers have to read the contract if a dispute goes to court doesn't mean lawyers "almost always" are the readers of significance, since most contracts never result in a dispute that goes to court. If a dispute goes to court, then of course it is prudent to hire a lawyer to represent your interests. But if contract language has done its job properly, there will never be a dispute that needs to go to court, because both parties--lay people--will have had a common understanding of what the contract says and will act in good faith to fulfill it.
How would you prove that? I think there are protected classes for that reason, but if some adult outside of such classifications signs they could ostensibly renege at any point under the pretense that they didn't understand, conversely I presume it would necessitate attorneys (or similar) at every contract signing to ensure it would be binding.
Fyi in practice, signing the document means that you understand it, as far as a court is concerned. Contracts will often throw in boiler plate like "I am authorized to sign this, I've read it, and I understand and agree to it."
The most common way it's successfully challenged is "incompetence" - by showing the person who signed it in no way could have possibly understood it (e.g. developmentally disabled, someone held a gun to their head, don't speak the language and the translation was fraudulent, etc).
You don't. Once you sign a written contract, the presumption is that there was a successful meeting of the minds between the parties. If you later want to claim that you didn't have a meeting of the minds with the other party, the burden of proof is on you to show that. The other party does not have to prove that you did understand the contract.
That's partly true — but there's no reason a contract can't be written to be understandable by mere mortals. (I do a lot of contract drafting and have been teaching it to 3Ls for years.)
Let me ask you this, though: why shouldn't I be a L.O.A.D.?
Also, who's the L.O.A.D. when I and a counterparty are editing a contract someone else drafted a template for five years ago? Am I expected to use my negotiating 'gun powder' to fix clarity issues?
Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they?
It depends on what's meant by "the best client representation" — is it "best" for the lawyer, or for the client?
What clients want — pretty much universally — is a contract that:
* sensibly and understandably handles the usual use cases;
* addresses the important business risks; and
* can be negotiated and signed quickly — in many cases that might be the client's most-important consideration, because the client is confident that the deal will go smoothly and/or that the business risks are low — and an understandable contract draft can be negotiated far more quickly than a draft that's loaded with "wall of words" provisions.
(The old saying is that most contracts are signed and never seen again, either because the deal goes smoothly or the business people work out any difficulties between themselves without getting lawyers involved.)
Almost never do clients give a [hoot] about maximizing their theoretical legal position for every conceivable set of circumstances — in fact, they're actively hostile to doing so if it means undue delay in getting the deal to signature.
A relevant Dilbert cartoon: https://dilbert.com/strip/2008-08-28
(Source: 40 years of law practice, including nearly seven years as vice president and general counsel of a public software company that I'd helped the founders to start.)
1. Your contract is really confusing and looks like it benefits the counter party at face value, but actually benefits you upon close inspection. These things can help with that. It's "dark arts" to apply this technique, and there are various shades of gray, but it happens.
2. It might cost less to have your lawyer correct these things. If I (lawyer) correct them and the the other lawyer has to read them and debate them with me, we're spending client money.
3. "Non-standard capitalization" for most purposes is standard in legal contracts. As lawyers we are more used to non standard than standard. I don't know what center-embedded means, and for passive voice, I'd need to see the example. Passive voice can be helpful as ambiguity can pull more possibilities into play, if desired. E.g.: "there shall be no fraudulent use of party A's intellectual property" is broader than "party b shall not use party a's intellectual property."
Not contract law, but I've been in two years of FOIA litigation to resolve a legal interpretation of "would" vs "could", and how that applies to a comma-separated list of categories. It's beyond maddening how long legal interpretation issues can go on for.
It sucks, but sometimes the verbosity is needed to avoid these sorts of years-long fights.
The opinion, btw: https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf
Here's the IL Appellate court's opinion in my suit if you're curious - lots of discussion at the intersection of SQL injection and esoteric legal interpretation: https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-...
(We won the at the Appellate, but it's going to IL Supreme Court..)
thanks!
Quite different from a conversation. Well, an ideal conversation anyway. Internet conversations seem to be more combative every day.
In the case of contracts, you're partially right, but it's more nuanced. The weird thing about contracts is that at the time they are signed, two parties need to agree with each other. If you're hiring a software vendor and I am your lawyer, I need to try to achieve two things at once: protect the company legally, but also sign the deal so that you can use the vendor. So I'm inclined to be somewhat friendly with the other side and to forego "air tight" legal defense of my side so that we can reach agreement.
Unfortunately this process has a side externality for clarity: we negotiate little parts of a template and the way we do so probably doesn't jive all that well with the template language.
If I'm Facebook and you're a user, there is no negotiation. So I try to make it as air tight as (legally) possible.