Legalese vs the little guy

In a telling op-ed piece in the New York Times, legal-lingo expert Adam Freedman cuts to the chase on the debate about the “right to bear arms” mentioned in the US Constitution’s Second Amendment: it’s all about a comma that means everything to us now, but meant very little to its writers.

The article is worth a read just to see the power that a comma can have. Freedman’s piece exposes the flaw at the heart of so many legal documents: language changes over time and varies from person to person, and it can never make a constitution or a contract truly watertight. Not even if the writer uses the fanciest legal terminology.

I am a vociferous opponent of legal language, or legalese. It is a scandal of our time, and an exercise in unnecessary obfuscation and exploitation. Not only does it keep lawyers’ fees exorbitant, but it stops people from entering into proper written agreements with each other, which is a danger to small businesses especially.

I recently signed, reluctantly, First National Bank’s standard surety contract for an overdraft for my company. As an editor with an MA, a major in Latin, and 10 years’ experience with contracts of various sorts, I honestly did not know what several clauses in the document were about. It was written literally in a different dialect, as recognisably English as The Canterbury Tales. The contract’s last clause, in bold type, suggested I get professional legal advice on what this contract was actually about before signing it. A lawyer’s time would have cost me several hundred rand of the 20 grand I was about to borrow, which just seemed daft, especially on top of the R1 000 fee I had to pay the bank for preparing the contract in the first place.

If I ever have to have an argument about that contract, I’ll point out that it’s impossible to understand. Perhaps I should have added my own clause noting this. (It would read something like this: “I hereby declare that, without prejudice to any further agreement entered into henceforth by myself or my representatives duly authorised and unauthorised, should I or my legal representatives be compelled to enter into proceedings before a judge, in arbitration, or in any other dispute-resolution process to be determined for the purpose, sole or otherwise, of protecting or exercising some or all of the rights stipulated therein, in favour of either party and force majeure notwithstanding, my argument and that of my legal representatives shall refer substantially to the nature of the terms contained therein and their linguistic construction, semantic and otherwise, including punctuation and the frequent use of Latin.”)

Is an agreement valid without a “hereby” and a “henceforth”? We’ve all wondered whether a document is “legally binding” when it sounds too much like ordinary speech. But if I leave a note on the fridge saying “I’ll wash up when I get back — A”, I’m certainly bound. So why is this principle so rarely applied in everyday life? Simply because we feel obliged to use legal language when we make a formal agreement? That sense of obligation makes entering into simple written agreements seem like a hassle. I used to hate contracts, until a client refused to pay me for work I’d done, and I had no written statement of what we’d agreed. With a little practice, I can now turn out an easy-to-read contract in a matter of minutes.

The argument I’ve heard in favour of legalese is that it’s less open to interpretation than everyday speech. Well, that’s certainly true if I can’t interpret it at all.

Contracts are indispensable, but only so that they’re in place if you eventually start fighting with someone. And once you’re fighting, no matter how your contract’s written, you’re going to disagree about what it meant. The fight’s just quicker if everyone can actually read the contract in the first place.