Lawtalkers Must Learn English, not Legalese

[Martinus]

Concerning the OP, I think like in most cases these drafting hints are about 1/3 of the no-brainer stuff, 1/3 of something debatable and 1/3 of total bullshit.

For example, the capitalization thing is very contextual. Sure, in documents where you are not going to use the term more than 2-3 times, there is little point to capitalize/define the term; same if it is obvious from the context that you are always referring to the same "court" or "debtor". But this is not always the case - sometimes you have numerous similar concepts/entities to describe and without defining/capitalizing them, it becomes a mess.

Same for the "and/or". In logic "or" can me either a situation of a disjunctive alternative (i.e. it's either A or B, but never both), or a conjunctive alternative (i.e. it's either A, B or both A and B). By stating "and/or" you are making sure it's the latter, rather than the former.

[Malthus]

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism.  Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).

Relying on templates *creates* problems, and litigation. The reason is that the "template" was developed with fact situation A in mind, and may be wholly inappropriate for fact situation B. Moreover, the lawyer using the template may not in fact know all the reasons various clauses were there for in the first place.

Legal drafting is hard work and requires real thought about what possible risks and consequences may arise in the future. Myself, I *read* other people's contracts (and my own previous ones) to grab good ideas where I can, but I never use templates - I'll copy clauses to be sure, but never without pretty careful consideration.

My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.

In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with. 

[Martinus]

Qualifications for being a lawyer in Poland:  Being able to read.  Suddenly, things make a lot more sense.

Are you referring to anything particular in my posts, or just trolling/being a retard?

[Martinus]

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism.  Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).

Relying on templates *creates* problems, and litigation. The reason is that the "template" was developed with fact situation A in mind, and may be wholly inappropriate for fact situation B. Moreover, the lawyer using the template may not in fact know all the reasons various clauses were there for in the first place.

Legal drafting is hard work and requires real thought about what possible risks and consequences may arise in the future. Myself, I *read* other people's contracts (and my own previous ones) to grab good ideas where I can, but I never use templates - I'll copy clauses to be sure, but never without pretty careful consideration.

My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.

In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with.

The problem is you sometimes run into stupid clients, who are happy to pay X for a 30 pages contract draft, but not for a 10 pages draft on the same issue - even if the latter probably takes longer to draft.

[Sophie Scholl]

Qualifications for being a lawyer in Poland:  Being able to read.  Suddenly, things make a lot more sense.

Are you referring to anything particular in my posts, or just trolling/being a retard?

It's been a long standing joke that you're not a lawyer^*, did you not get the meme memo?

^*Clarified for those who want it.  Thanks ULMONT!  You're my hero or something.

[Malthus]

The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.

For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.

Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).

What I see a lot of is so-called "agreements to agree", such as various (often complicated) ways of saying that the parties agree to hold negotiations in the future on an essential term of the contract, at their discretion. Unenforceable, but some lawyers & clients love doing it. 

[grumbler]

My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.

In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with. 

I wrote the contract by which I bought my present house, and only paid a lawyer to look at it.  I had, of course, a couple of examples to go on, and just put in what applied to my case.  The lawyer added three words, and that was it.  Bottom line, short and clear is cheaper and more satisfying to both parties to the contract.

[Habbaku]

It's been a long standing joke that you're not just by me, did you not get the meme memo?

What does Martinus do that is particularly unjust in your eyes?

[Martinus]

The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.

For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.

Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).

What I see a lot of is so-called "agreements to agree", such as various (often complicated) ways of saying that the parties agree to hold negotiations in the future on an essential term of the contract, at their discretion. Unenforceable, but some lawyers & clients love doing it.

The problem with such a representation, under Polish law at least, is that if the party making a representation about the agreement being binding, is not able to make the agreement binding, it also makes the representation non-binding.

Essentially, it's an assertion.

[Malthus]

My clients often ask me to draft *short* contracts, for the simple reason that long ones filled with every possible contingency are often off-putting to the opposite side and they run into real resistence to signing the things. This is a counter-pressure to the desire to protect against every unlikely contingency one can think of, and to concentrate on what is really significant.

In my experience the lawyers copying some hoary old precedent with a page-long force majure clause in it that protects against the risk of a zombie invasion, an alien landing or Sarah Palin becomming President are the same ones overlooking some pressing concern that should be dealt with. 

I wrote the contract by which I bought my present house, and only paid a lawyer to look at it.  I had, of course, a couple of examples to go on, and just put in what applied to my case.  The lawyer added three words, and that was it.  Bottom line, short and clear is cheaper and more satisfying to both parties to the contract.

Generally speaking, yes.

There are some relationships in which the complexity of the relationship requires a complex agreement (a good example is the so-called "tripartite' agreements that typically govern clinical trials - I draft these all the time, and they are invariably complicated becase they involve three or more parties - investigator, institution and sponsor - in a relationship with lots of extreme litigation risk built right in). Another example is asset purchase agreements between companies.

But these are typically agreements seen mostly by other lawyers. 

[Sophie Scholl]

It's been a long standing joke that you're not just by me, did you not get the meme memo?

What does Martinus do that is particularly unjust in your eyes?

*sigh*  Am I the only one who has seen Grumbler and others claim Martinus isn't actually a lawyer, or a crap one?

[ulmont]

It's been a long standing joke that you're not just by me, did you not get the meme memo?

What does Martinus do that is particularly unjust in your eyes?

*sigh*  Am I the only one who has seen Grumbler and others claim Martinus isn't actually a lawyer, or a crap one?

I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.

[jimmy olsen]

Generally speaking, yes.

There are some relationships in which the complexity of the relationship requires a complex agreement (a good example is the so-called "tripartite' agreements that typically govern clinical trials - I draft these all the time, and they are invariably complicated becase they involve three or more parties - investigator, institution and sponsor - in a relationship with lots of extreme litigation risk built right in). Another example is asset purchase agreements between companies.

Just make sure there are no Italians involved and it should go fine.

[Neil]

It's been a long standing joke that you're not just by me, did you not get the meme memo?

What does Martinus do that is particularly unjust in your eyes?

Interfering with proper business.

[Sophie Scholl]

I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.

Right, so I fucked up my second statement.  The first made it more clear, alas it wasn't in the quote train.  My apologies.  Thanks for the clarification, you truly are a life saver.