Contracts and Plain English: A content paradox

Law and strategy are both complex and difficult areas. The interface of the two can therefore be hard to reconcile, especially when communication is involved. In this article we look at the Contracts Paradox: Where Plain English sounds great, but creating it is not a simple matter.

It’s appropriate here to drop this in:

Every man takes the limits of his own field of vision for the limits of the world.
~ Arthur Schopenhauer

Introducing Plain English is an innovation all of its own. But in Law there are ways to do things, and many reasons on either side. What we can’t do is allow ourselves to have blinkers on. In Law, like in almost every field, you can fail to innovate because you’re not looking at how other people do things. When you are focused on your own field all the time, it’s easier to see what you can’t do than what you might be able to do, replicate or otherwise introduce.

Decorative: Photograph of a horse wearing blinkers.
Blinkers are not always useful. Image credit: Rob Faulkner

Law is being challenged by its own practices

To some extent, ‘things being done a certain way’ can explain much of the discipline of Law. (In a big-​picture sense, anyway.) Things have to be done a particular way. If you want to change legislation, it’s a long process that has many parts. Legal work asks you to do things a certain way because if you don’t, then the consequences can be significant.

But what firms are at risk of thinking is that because the work of law requires certain things, and because the nature of legislation is itself a particular way, that you have to set up and run your company in established ways. Or even that you have to do things in line with everyone else in your field.

Strategic work asks you to stick your head above the line

To put it simply, you need to be able to poke your head up above what you’re doing and look around if you’re going to work strategically.

This is why Arthur Schopenhauer’s quote is so significant. In law (and arguably as in any other type of business), it’s easy to take the limitations of the field as being the limits of the whole world. You add insult to injury if you then add a strategist to the mix who doesn’t quite understand this. It’s as easy for a strategist to bring his or her own world-​view limitations into any given situation, too, and just work within that, as it is for you to be limited by yourself.

Tricky, huh.

Unfortunately, it’s nice to limit your view. It’s easier, it’s more comfortable, and it reduces the complexity of your work.

Paradoxes are at the heart of strategy

Strategic work is amongst the most complex work you will do. The reason is because there is never truly a “best” answer. You can’t just bring in a solution and apply it, because strategy is layered, with each layer influencing the others.

Perhaps the best description I’ve seen (one with which I happen to agree) says that strategic work is trying to find out how best to cope with a paradox. (It came from this book.)

So that you and I are on terms with each other, here’s a definition: A paradox is a situation where you have two contradictions and both are true at the same time. There’s never any real solution for it.

The strategist therefore needs to consider the tensions that exist between the two sides, and find the most appropriate way to cope with it in this situation. (Whatever “this” is.).

The content paradox: Plain English and Law

Probably the easiest way to understand the paradox at work — and its relationship with law — is to bring it to the micro level. Let’s talk about language.

In the great Language Battle, that fight for precision, clarity and definition, lawyers tend to get red faced and staunch about the use of Plain English. There are many reasons for this, which we won’t go into right now. Suffice it to say that the legalese that is appropriate for the work of law is rarely appropriate for the law firm who deals with non-​lawyer customers.

And while you could say, ‘yes but this comes down to audience and relevance’, and I would agree, in some circumstances you may not be able to resolve it so cleanly.

Contracts illustrate the content paradox

Contracts are written by lawyers to be specific and precise, and to remove misunderstanding in a court of law. They therefore have a specific readership (other lawyers). BUT they are written for non-​lawyers to give to other non-​lawyers. Each of those non-​lawyers is expected to be able to read it and understand it.

The problem we have is that people without a certain level of education (or even without specific guidance) will often struggle to read these contracts. In many cases, such people skip over clauses, and sign the contract and just hope for the best.

The paradox: Both readerships and both purposes exist and need to be able to use and relate to a contract.

The tension: Exists between the abilities of each reader to understand the document.

It can’t be resolved: Each need of each audience is so different. Writing for one will result in understanding of the people who sign it, but may fail scrutiny in a court. Writing for the other will withstand scrutiny in a court but may fail the understanding of the other type of reader.

You could train everyone in how to read contracts, but it’s a waste of time.

It would be ideal to move law to Plain English. But there are so many complexities and layers to such a consideration that we will mention it and just back away quietly.

The best answer is the one that helps you to cope with a paradox.

So perhaps one solution is to do what we have done (and which some client law firms have done since). That is: Include a Plain English “introduction” for every clause. We make the Plain English summary bigger and easier to read, to enable fast skimming, clarity and good understanding for people regardless of their education levels. It’s not perfect, but it’s a decent halfway point that allows both types of audiences to read and understand what is in front of them. And it encourages people to actually read the fine print!

How you can cope with this paradox in your law firm

Regardless of your area of specialisation, it’s an extremely good idea to find out how and where you can insert Plain English into your customer-​facing documentation. Replace all your legalese as much as you can. Train your lawyers so they’re on board with Plain Englishifying things too.

Writing in Plain English empowers your customers because it helps them understand what you’re doing.

Wherever you have language that suits other lawyers better than your customers, ask What can I do to help both readerships? It might not always be replacement. You could also:

  • Offer links to Plain English explanations (or vice versa)
  • Have legalese on one side and Plain English on the other
  • Maintain two entirely separate repositories, one for lawyers, the other for customers.

It’s a great idea to look at other areas and see how they have done it. This effort by Tumblr is a great example of how to weave common language into your legal documents.

Your takeaway is that all good strategy will challenge your world view

Just because law is a complex area, and just because the field does things in a particular way, it doesn’t mean that you have to do that too. It’s a simple thing, but enormously powerful.

If you’re an innovator, think about these tiny little ‘disruptions’. Bring in some new thinking, do things in a different way. Once you start cracking your usual frameworks in one area, you’ll find them easier to crack in others.

Get in touch with us to learn more about the strategic thinking we can bring to your law firm.

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