Why Are Contracts Not Written in Plain English?

Why are contracts not written in plain English? The short answer: to reduce misunderstandings. The one word answer: ambiguity. Let me explain.

Ordinary, everyday language is rife with ambiguity, but often we don’t notice. Here's an example. Take the words “day” and “night.”  Those words seem simple enough, but when does a “day” end and when does a “night” begin (and vice versa)?

It’s very likely you can come up with an answer for yourself for what is the difference between night and day, but how sure are you that other people would have the exact same definitions? And are you sure that *everyone* would have the exact same definitions?

Let me offer some possibilities:

• End of day is the end of the standard work day (as in, “Get me that report by the end of the day!”), so 5:00 p.m. (but is this really the end of the “standard” work day? What is the “standard” work day anyway? You see how ambiguity multiplies??)

• End of day is the moment the sun fully sets, but even after sunset, it is still light out because of the twilight, so…

• End of day is the moment when darkness completely falls.

• End of day is when the clock strikes midnight and the next “day” begins.

There may be even more possibilities, but the point is that “plain” language, when scrutinized, often is not as plain as it seems.

Why don’t we notice the ambiguity of ordinary speech more often? Mostly, because ambiguities are routinely cleared up through conversation.

For example, I might say, “See you at the end of the day.” And you might say, “Great. Um…do you mean 5 o’clock?” And I might say, “Sorry, I meant 5:30.” And through the conversation we would understand each other.

Conversations, however, are not very useful for understanding legal documents for a simple reason: when legal documents come into play, there is usually a dispute, and if there is a dispute, both parties have an incentive to interpret words in the way that is most favorable to that person’s personal interests. So, just asking someone what they “meant” is unlikely to elicit a fully truthful answer.

What’s the solution? Be specific. Very specific. That means use technical terms with well understood meanings. That means use verbose descriptions. That means try to cover all conceivable contingencies.

Once you start writing defensively like this, you get unwieldy, hard-to-read documents, or what is sometimes called “legalese.”

It’s not pretty. It’s not easy to read. But when done correctly, these legal documents avoid disputes by having a clarity that our ordinary speech usually lacks.

By the way, if you’re interested in this topic and others like it, I discuss this at length in my book The Legal Mind: How the Law Thinks, which you can check out on Amazon by clicking here.

Note: This post first appeared in response to a question posed on Quora.

Your Fate in Others' Hands

One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.

In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.

Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?

In a recent article in the Chronicle of Higher Education by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:

"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now." 

But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."

What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.

And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.

For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.

Same Word, Different Meanings

One of the fundamental challenges people face in understanding and applying the law is that the same word can mean different things to different people. Eugene Volokh has an excellent post today about how Abraham Lincoln in the midst of the Civil War made this very same point.

Everyone is for liberty, but not everyone agrees what liberty is. In Lincoln's day, some people thought liberty meant freedom of slaves from bondage, but others argued that liberty meant the freedom to hold slaves if they wanted.

Here is what Lincoln said:

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.

Words are often more ambiguous than most of us realize. Debates and disagreements over the meaning of words can lead to conflict, sometimes violent conflict, and sometimes, as in Lincoln's day, a long and bloody civil war.