Thursday, July 5, 2007

Some thoughts on contracts and other legal documents

Reading this post from Adams Drafting I came upon this and it triggered some thoughts which I feel necessary to share:

It’s clear enough that eliminating archaisms such as WITNESSETH wouldn’t affect meaning. But what about eliminating the extraneous shall? Using shall outside of an obligation is sometimes just a distraction, as in This agreement shall be governed by the laws of the Province of Ontario—there’s no risk of the extranous shall affecting meaning. But it might be a different matter if you use shall when attempting to express a condition: as I discussed in this post and this post, it’s relatively commonplace for parties to dispute whether a given provision constitutes an obligation or a condition.
Too often I have found clients who think they are not getting their money's worth unless the contract or other document comes freighted with so many legalisms that the contract becomes unintelligible even to those drafting the document. Or I find myself confronted with a document written by a non-lawyer with the sort of language that would have overjoyed a lawyer from the era of wingtip collars and spats but does not give the protection or rights that the parties thought they were getting in the deal.

I came from law school when plain English was being touted as a great quality in legal writing. I try to educate my clients that a contracts needs above all to be intelligible to everyone and anyone who reads the documents. I am not always successful in my efforts. For the reason why I fail and why I think people still crave and pay for legalese, I think the answer can be found in this quote from David Hume:
...As these enemies are entirely invisible and unknown, the methods taken to appease them are equally unaccountable,° and consist in ceremonies, observances, mortifications, sacrifices, presents, or in any practice, however absurd or frivolous, which either folly or knavery recommends to a blind and terrified credulity.° Weakness, fear, melancholy, together with ignorance, are, therefore, the true sources of SUPERSTITION.