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Have hard-to-understand or long
documents prepared by your lawyer scared off prospective business partners or
customers?
You're not
alone - it happens all the time. In most
cases these documents (whether from lawyers or elsewhere) can be substantially simplified, written in plain English, and reduced in
length without compromising their mission or effectiveness. This can mean the difference between securing
a deal and losing it.
Business Document
Forms abound these days. They’re everywhere – online, in books, in
software. Today, anyone can access countless
time and court-tested business agreement forms, including you! Professional business writers like us access
form archives as a tool of our trade, and all lawyers routinely rely on prescribed
forms. Forms in their own archives, form
generating software, online services, books, etc.
Being time
and court tested, however, does not mean they’re well written, or easily
understood. It’s not enough to just find
and copy a form. To wisely use what’s
out there, you first need to know how and where to locate good forms; just sorting through all the options is
overwhelming. Second, even if you begin
with a good form, it’s only a starting point. For every unique circumstance
they need adaptation, which requires time and superior writing skills.
Many
lawyers are good writers. The majority
are average or lousy – too busy. We've all heard of "lawyer mumbo-jumbo" and "legalese." Even
good lawyers don’t have the time to
develop top notch writing skills; they’re occupied tending to their case loads,
politics, and continuing legal education. Time is something most lawyers don’t have a
lot of. So, they routinely fall back on
the familiar tried and true form files their firms have used for years (“they
were good enough for all the other lawyers who used them, so I suppose they’re
good enough for me”). Few of their
clients know the difference. They say,
“trust me, even though it’s hard to understand, it protects you.” Comforting isn’t it.
They cut
and paste, switch out names, and presto, your agreement.  (Lawyers, however, often charge for more than
just the editing time.) Problem is, many
of the forms used as starting points are themselves poorly written, victims of
decades of accumulated legalese, which tends to pile up like plaque in your arteries. It's intimidating or annoying to those who don't eat legalese for breakfast, and can be as difficult to read as a foreign language.
Lawyers
have a propensity for making contracts (and other legal writing) unnecessarily
complicated. They've long been in the
habit of charging by the paragraph, and have volumes of archaic, formulaic
language to draw on, which removes any incentive to reduce length. The
truth is that making a needlessly complex document simpler takes more time and
effort than just re-using it as it is.
Moreover, reviewing lawyers always add something, and will drill a contract into the ground by covering every conceivable
future contingency. They'll put
everything but the kitchen sink into a contract, including things that are already stated in applicable case law or statutes. (after all, it’s at your expense). They view their role as arbiter of every
conceivable contingency and, while never admitted, complexity and the use of
legal “terms of art” generate continued demand for legal services.
Consequently,
they tend to bury or forget the agreement’s essence and simplicity beneath all
the possibilities and boilerplate, and leave clients wondering “why does this have
to be so convoluted?” They aren’t
thinking so much about how an agreement is going to be understood by the parties
or the comfort level it fosters. They’re
thinking about their fee (justifying their billing statement), appearing
brilliant, being relevant, avoiding a malpractice claim, and covering their butts. Young associates at big law firms are
climbing the ladder and so strive to impress (they think length =
impressive). Complexity? That’s what
people have lawyers for, right?
If you want to cut through the bull
in your business agreements, we’re experts.
If you’re lawyer has dumped long, complex documents in your lap, we can
streamline them for clarity and user-friendliness. Once we have developed something you understand, that fits your needs,
and is likely to be trusted and understood by all parties, then you can take it
to the lawyers for an “am I protected” legal opinion. To see before and after
illustrations - click here.
Budgets,
time, and contract psychology often don’t afford the luxury
of including every conceivable contingency, or running
negotiations into the ground over minutia. Just because an issue may be present
doesn’t mean it can’t be deliberately omitted.
When writing agreements that bind multiple parties, distinguish between
what is essential to the bargain, and
the superfluous. While it is important
to address expected and likely future contingencies, it can be an exercise in
futility to attempt to address every imaginable contingency.
First, make
sure the agreement serves the parties’
objects, and says what the parties intend it to say, and not what professionals
charging for its legalese say is standard.
Second, verify that the objects of the document and the parties have been
addressed clearly. Does the Agreement leave any doubt or
confusion about what the Parties' obligations are? Here’s how we see it: Agreements ought to
serve the interests of parties, not the lawyers' interests.
This isn’t
to diminish the importance of what lawyers do; there are times when the
protection afforded by a long, detailed contract is appropriate. What we are saying is that complexity and
lengthy content can actually make an Agreement more likely to breed confusion
and conflict. When a provision is not absolutely necessary to address reasonably
likely future contingencies affecting the parties' rights and duties, leave it out. Stick to the deal’s pertinent subjects. People
don’t like to be confused or intimidated by a contract. In fact they are more likely to disregard the
contract if they don’t understand it, or if they perceive it as a bunch of
gobbledygook.
If an Agreement is clear, honest,
and simple parties are more likely to perceive it as “fair,” more likely to
honor it, and less likely to hide behind its confusing provisions.
If you want
to tighten and streamline your
agreements, click here for a no obligation quote.
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