Published in The Clarity Journal 73 – 2015
There is an ever-increasing need and demand from the public for information that is accessible, transparent, and easy to understand. When we view contracts as working documents—binding guides to action rather than legal records, we write to engage people to read and understand them, improve commercial relationships, minimize risk, and prevent workplace frustration.
This report brings you up to date on developments applying brain research, empathy, collaboration, and design principles to contracts.
Scientific research in two fields affects writing as communication–neuroscience and psychology:
Writers employing plain language plan, design, and organize their documents in an overall effort to achieve clear communication with the reader.
And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate (2011) by Julie A. Baker, Associate Professor of Legal Writing, Suffolk University Law School, http://ssrn.com/abstract=1915300.
… most of the time, plain language is, in fact, the right way to write, as it is ‘fluent’ and thereby inspires feelings of ease, confidence, and trust in readers (whereas legalese is ‘disfluent,’ engendering feelings of dislike and mistrust).
Stephen R. Diamond has also written about cognitive science:
Cognitive disfluency: Simpler isn’t always better at http://disputedissues.blogspot. com/2011/09/cognitive-disfluency-simpler-isnt.html
The dialectic of clarity: Cognitive fluency vies with cohesion at http://disputedissues. blogspot.com/2012/04/dialectic-of-clarity-cognitive-fluency.html
Legal ease and ‘Legalese’ by James Hartley (Department of Psychology , Keele Universit,Staffordshire, STS 5BG, UK) at http://www.tandfonline.com/doi/ abs/10.1080/10683160008410828#.VMFs1Cz4Qrg
The Reader’s Limited Capacity: A Working-Memory Theory for Legal Writers by Andrew M. Carter (Associate Clinical Professor, Sandra Day O’Connor College of Law, Arizona State University) at http://www.alwd.org/lcr/fall-2014-volume-11/ the-readers-limited-capacity-a-working-memory-theory-for-legal-writers/
Understand the transaction
What are the client’s goals and expectations? Is the client’s intention met?
A contract’s purpose is to reflect the parties’ common intention. The drafter must devote the necessary time and energy to capture the scope of the parties’ understanding:
- what are their needs, requirements, and objectives, and
- how will they be achieved?
Clients understand their own business environment, issues, and desired outcomes
of the transaction for which a contract is required. These need to be clearly communicated to you, the drafter. The actual process, mechanics, steps, and limits must be discussed and understood. Without this very important preparatory work, the best-drafted contract may fail to reflect the parties’ common intention.
Understand the transaction to:
- Select the right type of transaction
- Decide on appropriate contract provisions
Using plain language requires the writer to identify with and understand the reader and his or her perspective: feelings, thoughts, attitudes, and expectations. Russell Willerton, professor of English at Boise State University, authored Plain Language and Ethical Action. Here is how he puts it:
When you empathize with the users of a website or system, you see things from their perspectives and not just your own. Through empathy, you can realize that not everyone knows who does what or what goes where in an organization. Not everyone knows the jargon, buzzwords, and insider lingo.
Empathy is also key to harmonious relations and retention with clients, suppliers or other partners. Empathy isn’t limited to family law and probate kinds of matters, but can be applied in many other contexts. Lawyer J. Kim Wright gives workshops around the world on writing contracts that help establish, nurture, and change business relationships. She recently commented on the LinkedIn group Plain Language Advocates:
Conscious Contracts aren’t just a translation of boilerplate. They have a different tone, structure, and purpose: rather than creating a document to protect your client from potential harm, you make a document that creates a sustainable relationship. Some of the words and clauses may be the same, but the context and language are relational, not protective. In CC, we have conversations about purpose and values that then get integrated into the contract, with a dispute resolution clause that ties the values to resolution.
Wright recently posted this article: http://jkimwright.com/conscious-contracts- bringing-purpose-and-values-into-legal-documents/ She also offered these resources on that approach:
www.consciouscontracts.com www.discoveringagreement.com http://resolutionworks.com/
Who else says plain language can improve your contracts?
The new CEO of IBM focused its legal department on simplifying contracts to improve customer service. A new 4-page relationship agreement is used for all IBM products. The contract for cloud services is just 2 pages. Critics have suggested that they could still make it plainer if not shorter. Still the International Association for Contract and Commercial Management named IBM a finalist for its 2014 Innovation Award for Operational Improvement.
Writing in American Banker, Duncan MacDonald, former General Counsel of Citigroup Inc. European and North American card business, is a long time-supporter of plain legal language. He supports simplification: “There is no good reason that basic loans can’t fit on one page in a reasonable type size, and mortgages in not more than four. Don’t let the lawyers bully you into thinking otherwise.” http://clarity- international.net/journals/51.pdf
In her comprehensive book “Drafting contracts, How and why lawyers do what they do”, Tina L. Clark states, “Legalese annoys almost anyone who reads contract – whether client, lawyer or judge. Obscure words and phrases, hailing from times past, clutter provisions and make them difficult to understand.”
Spell out the application of formulas
Before including any formula, understand how it works, and test that it does. Test whether it results in a negative number. Draft a formula using an algebraic equation first, before translating it into words: this will test whether it works. If it does not, the parties’ intention may not be clear or they may not have agreed on the same concept.
Include an example in the contract to show how the formula should be interpreted and applied. This serves to avoid any misinterpretations. You may even decide to include more than one example where the formula leads to very different conclusions, to ensure common understanding, and to test the formula in unusual circumstances.
Here is how you would do that:
Pricing: customer sale price per Item will be calculated by adding shipping and publicity costs per Item to the amount paid by A to purchase the Item from the approved suppliers. Said amount will be increased by 15% (this percentage will be retained by A as its profit per Item, as per clause XX).
Item cost from supplier: $15.00 Shipping cost per Item: $1.00
Publicity cost per month, divided per Item sold during that month: $0.50 Price: $16.50
Increased by 15%: $2.47
Total Item price: $18.97
This clause would be even more readable with bulleted levels: Pricing: customer sale price per Item will be calculated as follows:
- Purchase cost of Item by A from approved suppliers, plus
- Shipping cost per Item, and
- Publicity cost per Item, and
- 15% (profit per Item, retained by A)
Use visuals and appendices
How do visual objects make information easier to understand? Read What Is Contract Visualization? at http://www.mindspace.fi/en/contract-visu/
Information in visuals is encoded explicitly by the brain so it is easier to grasp the meaning. Integrating pictures and text improves processing by sharing the work between 2 different processing systems of the brain. Visual structures and cues also lower the possibility of misinterpretation—acting as paralanguage.
Working together to agree upon visual features can help parties align their goals and common understanding. They can explore their important issues more easily during negotiations.
Using these makes the contract information more accessible. Use lists, charts, and tables that are examples of brevity and clarity—to help readers easily pick out key information.
Consider adding flowcharts, timelines, payment tables, and other graphic features. Be sure to place drawings, photographs or examples next to the words they illustrate.
Leaders in Visual Design in Law
Two women are guiding us forward in making law more understandable by using design processes and visuals: Stefania Passera and Margaret Hagan.
Stefania Passera has produced 2 SlideShare sets supporting conference papers:
- Beyond the wall of text: how information design can make contracts user-friendly at http://www.slideshare.net/StefaniaPassera/hci-passera
- User-Centered Contract Design: New Directions in the Quest for Simpler Contracting
Margaret Hagan has created a toolbox to show you how, when, and why to create visuals for law here: http://www.legaltechdesign.com/LegalDesignToolbox/ communicate-info-in-a-better-way/
Watch these two to keep up with the newest developments.