or at least in some way, that any reasonably-educated layman could still understand it?
I don’t have a Legal background, but part of my job entails reviewing typical contracts that my company enters into, and summarizing the highlights into a one-page factsheet, that anyone can refer to, so others can get “the jist”.
One thing I continue to notice, is that an agreement that drones on for 70+ pages, sure seems like it could have been written in more of a “conversational” format, and compressed into 6 - 7 pages at the most.
For example, this exerpt:
Why not just say, “for a period of three years, neither party should reveal information to the public, that is considered to be confidential by the other party”, and then move on to the next paragraph?
And yes, I get that this is a lame example, but multiply that paragraph times 100 (with each one written in the exact same “wall of text” as what I posted), and you can see the hell that I live in.
I guess the easy answer is that “contracts like this have to cover all their bases”, but it seems like these things are intentionally written so that only 1 - 2 % of the population can actually read through them without their head exploding.
I work with lawyers-- in fact one of my primary functions is to help them communicate information with non-lawyers in a way that doesn’t make their eyes glaze. I’ve had a lot of conversations with them about why they write this way. It is born out of a desire to indisputably cover all bases, and to leave no loophole some other lawyer can wiggle through. Not being that thorough leaves this open to interpretation, and the risk is someone else’s interpretation will be different than your intent. Why take the risk?
(For example, your summary missed that the do-not-disclose period on source code is not three years, but indefinite. In my industry that small miss could be earth-shatteringly bad and cost a company millions of dollars.)
They are (mostly) incredibly detailed and examination oriented people, capable of dissecting the simplest thing down to a cross examination of 50 questions-- and seeing the opposition’s perspective the whole time (if they’re good lawyers, anyway). The audience for legal documents, when it counts, is the court system/other lawyers, so they write for them.
Being that accurate, but brief, is possible, but it’s hard. It means six people in a room for two hours debating adverbs. I’ve been at that meeting (maaaaany times). Wall-o-text is faster, unless you absolutely must do otherwise.
I would argue the opposite…contracts are long and verbose because such documents increase ambiguity, and provide for more litigation. Implicit in the American legal system is the assumption that both parties are basically dishonest, and will use any small loophole as a means to disavow the contract. The main product of the law is more litigation, and means to promote it are of benefit to lawyers. That is why the most common contract (marriage) is the subject of much litigation, when it is ended via divorce.
thank you Obsidian for “justifying” it for me, especially considering that you are in my estimate of the “1 - 2 % of people who understand these things”
It would be nice is contracts had an executive summary. I deal in a lot of T&Cs and service contracts and it’s just brutal to make heads or tails of it. Many, many deals are killed over this. I don’t care what lawyers say about this being required, its counterproductive and there’s no small measure of job security motivating it.
Because when some shit that you don’t want getting publicized gets publicized, you’re going to blame your lawyer for not protecting you enough. Meanwhile the other guy is going to do whatever he wants with your information unless his lawyer tells him the contract explicitly forbids it. Everybody thinks he’s in the right all the time, and every day, when one of the million “one in a million” things that can happen happens, somebody somewhere is infuriated about what a thief his lawyer is for stealing his money and not doing his job properly.
I don’t do contracts or anything of that nature, but this is a really common problem people have with lawyers, and I promise you, it doesn’t generally come from lawyers’ love of going through all this shit in this much detail. These things get spelled out in detail because in the real world, often enough, they become issues. They go to court. What counts as revealing information to the public? What if it happens by accident? What if the other party says everything is confidential? What if there’s information that needs to get out, and both parties verbally agree it needs to get out, but then when it gets out one side sues the other because the contract says it wasn’t allowed? When a business owner has to go to court for something like this, his lawyer didn’t do his job. When it never goes to court because it was dealt with at the time of contract, his lawyer’s just an overpriced douchebag who wasted some of his time. Second one’s better.
Because this doesn’t convey the same duties as the paragraph you quoted. For example, your quote does not oblige the company to protect their clients data to the same degree as they protect their own.
Because right now when people are signing the contract, everybody is getting along. But two years from now, there’ll be an argument over what they agreed to. And if the agreement is written down in conversational language, both sides will be claiming that they’re right.
Legal language is designed to be very precise so that what’s being said is exactly defined.
I spent several years in a practice that did a lot of contract litigation, and this is my experience. Small businesses write up a contract themselves, and it seems to them like they’ve covered all the details. Then one party gets disgruntled with the others’ performance, and that nice, understandable contract is revealed to have enough ambiguity and outright missing content to fuel years of litigation at a cost of thousands (or tens of thousands) of dollars.
Contracts are kind of like that experiment from school where you instruct someone else to make a peanut butter sandwich, and they can only do exactly what you say. A well written contract will force even a hostile partner into making a proper peanut butter sandwich no matter how much they try to misinterpret the instructions.
I agree with Obsidian and Little Nemo. I had some friends agree to photograph and sell a bunch of collectables on Ebay for me. I said they could have 30% of the profit. We shook on it. That was that.
But, we could all be sure of two very important things. We could trust each other’s good intentions, and we were sure we understood each other. Those two prerequisites are absent in most contracts.
FWIW, my lawyering skills professor tried to teach us to write more “normally” and pointed out common examples of superfluous language lawyers tended to use just because it sounded “lawyerly” or “that’s how they wrote it in this other contract I’m copying.”
Yes, I’m sure people could come up with examples where a specific phrases is needed (likely due to mountains of case law), but in the end there is certainly room for improvement. Your example is a bit too simplistic and leaves out some aspects (for example, written permission) but you got the general gist of it.
Consider the OP. The text he quoted included the line, “neither Party may use, reproduce, distribute or disclose Confidential Information it receives from the other Party under this Agreement”. All of those words have meanings that have been established in previous cases.
Suppose I decided to simplify the language and make it “neither Party may share Confidential Information it receives from the other Party under this Agreement”. Now there’s a basis for dispute. What does “share” mean? Maybe I’m allowed to give the information away as long as I don’t sell it. Maybe I’m allowed to sell the information as long as I transfer ownership of it. Maybe I’m allowed to pass on the information in private communications as long as I don’t publicly publish it. We’re going to have to go through a series of lawsuits to get judges to decide what sharing consists of.
So instead we decide to write “use, reproduce, distribute or disclose” because all of these terms already have established meanings from past lawsuits. And the fact that all four terms are included probably means their meanings were established in separate cases. Saying you can’t “use, reproduce, or disclose information” has a different legal meaning that saying you can’t “use, reproduce, or distribute information”.
It sounds stupid but little details like this matter. I once had a professor discussing a case where one side was arguing the point that the Eighth Amendment prohibited cruel and unusual punishment and not cruel or unusual punishment - so punishments that were cruel were allowed and punishments that were unusual were allowed as long as the punishments didn’t overlap.
I have in both my contracts and conveyancing classes been taught to simplify language whenever possible, and to avoid using words that sound lawyerly merely for the sake of it. On the other hand, I have learned that certain words and phrases have a specific legal meaning, and if I don’t use them, I’m in trouble.
So, Nemo is right, I would suspect that some of those phrases have a meaning established in case law. Now in some cases, that phrase is backed by case law from the 1800s, when people spoke very differently, so it looks stilted and yes, lawyerly, but it has a specific legal meaning.
For example, I’m working with a contract that has the words “if a purchaser does not comply with this contract… in an essential respect”. Now you might ask, what does that mean? What is an essential respect? Can’t you just say something less wordy? Why can’t you just say “if the purchaser doesn’t comply”?
I can tell you that there are two cases that address this, and I can explain to you the difference between a condition, a warranty and an intermediate term, I can tell you that it doesn’t have to be a condition to fall under an essential respect if it rises to a Flight v Booth situation but your eyes will glaze over. But I’m damn sure going to leave “in an essential respect” in the clause unless you advise me in writing to do otherwise, or when you get sued I’m up for professional misconduct and Lawcover will want to chat with me about my premium. (When, of course, I am an actual lawyer in about two years.)
IANAL. Having said that, here’s the way I see it. A composer/arranger can communicate pretty precisely what he wants the viola player to play using musical notation. It can be pretty exact. Engineers can use mathematics to convey information to another engineer. On the other hand, common, everyday English is pretty inexact. So, I figure while at first glance it looks like lawyers are using English, they’re really using Legalese, which is mostly a Jargon where very specific meanings are applied to everyday words.
So, IMO, it’s necessary. But maybe I still wonder if the Heretos and Wherefores are all that necessary.
Lawyers sometimes write to be precise. Other times they write to be very broad and opaque. It depends what their motive is. They will be precise when the detail penalties but they’ll be very vague about the conditions for those penalties in order to give them wiggle room if something gets litigated. They will be precise when the detail what the payment terms are, but they’ll be really vague when they outline what the scope of the service they are providing is so they minimize the obligation.
Make no mistake, the lawyerly language is intentional and they use the opaqueness to their advantage. A simpler statement sometimes allows for risk because its too vague, but other times a simpler statement increases risk because it too clear. Lawyers use both in equal measures.
There are definitely two different questions here. The first is whether a 70 page contract with a lot of boilerplate legalese can be written in more conversational language, or in a way that is at least somewhat more accessible. The answer to that is sure it can, and as a few posters have already noted this is something that is being strongly emphasized in legal education these days; it will take a while for our generation of lawyers to be the ones mostly in charge of what those documents sound like, but over time that shift is taking place.
The second question, though, is whether a 70 page contract can be reduced to a tenth of that and still retain its effectiveness, and the answer to that one is definitely no. I could rewrite the OP’s excerpt to sound super-informal, like
or something, but talking about more casually still isn’t going to make it any more concise. Probably the opposite, in fact; the terms that are in there aren’t in there to make it more fun to read, obviously, so they must be in there for some other reason, and inaccessible shorthand gets to the point faster than everyday English. And hopefully what that example shows is that informality costs you something in terms of precision - like Nemo says, there’s no casual way to articulate some of these ideas, because we’re talking sophisticated distinctions here.
And then ABC Corp sells a bunch of information about XYZ’s new product line to Acme Inc. XYZ is shocked by this and their lawyers tell ABC they’ll be suing for breach of contract.
“What breach of contract? We didn’t break the contract.”
“Sure you did. You sold our company’s secrets to Acme.”
“Yeah, we did that. But they agreed to keep it confidential. Which makes sense because they don’t want other companies to know this stuff for free when they had to pay for it.”
“So you’re admitting you disclosed information from our company.”
“Nothing wrong with that.”
“What?”
“It says so in our contract. We agreed not to make any information we receive from you public in any way. We didn’t do that. We sold the information in a private and confidential way.”
[QUOTE=Win Place Show]
Why not just say, “for a period of three years, neither party should reveal information to the public, that is considered to be confidential by the other party”, and then move on to the next paragraph?
[/QUOTE]
Because that’s only part of what the clause you’ve quoted states. It says:
the OP’s suggested replacement language ignores the requirement not to “use, reproduce, distribute” the confidential information without the other party’s consent. That’s got nothing to do with making something public; that’s about the internal use that the one party makes of the other party’s confidential information. If the information is some sort of a trade secret, that could confer a huge advantage on the party, allowing it to use, reproduce and distribute the other party’s trade secret for its own internal purposes.
Plus, what does “make public” mean? Little Nemo’s given a good example: is it making it public if it’s shared with one other corporation, under a confidentiality clause?
Does information shared by low level employees during happy hour qualify as confidential information? Can the receiving party share the information with its contractor or would they be considered part of the public? If an employee of the receiving party has a habit losing confidential reports while riding the subway, is it considered revealing information to the public?
Your summary, while readable, is silent on all these potential scenarios. The contract excerpt, on the other hand, addresses all these concerns.
