KEY TAKEAWAYS:
- Plain language is communication your audience can understand the first time they read it.
- Terms in plain language are shorter, simpler, easier to read, quicker to negotiate, aligned with brand and tone of voice, and less likely to lead to a dispute.
- Many companies face a regulatory requirement to follow plain language principles in consumer-facing terms.
Let’s face it, contracts can be long, dull, and difficult to read. Even for the most experienced lawyers who love them.
Over the years tech has made the contract negotiation process much simpler. But contracts seem to have become longer and more complex. Negotiations are protracted. Complicated clauses are often the basis of disputes. Consumer terms are too wordy, formal, and unengaging.
And it’s not just contracts. Legal advice can be a lengthy regurgitation of the law. Jargon-packed, difficult to understand, and misses the mark.
Plain language is the solution.
What is it?
- Not legalese. Writing that is clear, concise, well-organized, written with the reader in mind, with the right tone of voice, and understood straight away.
- A critical part of legal design. The application of design-thinking principles to improve the accessibility, clarity, and usability of legal information.
Why use it?
- Competitive edge. It’s faster to write and faster to read.Contracts that are simple, easy to read, balanced, and on-brand will be a differentiator. Deals will get done quicker.
- Regulatory requirement. Many industries are now required to redraft consumer terms following plain language principles to improve transparency and understanding.
- Prevent disputes. Keeping words and sentences clear, short, and simple leaves less room for interpretation and ambiguity.
- Clear communication. It’ll help get your message across more often and more easily, whatever that message may be.
How can you put it into practice?
1. Keep it short
Use short words, sentences, and paragraphs where possible. This doesn’t mean making every sentence the same length. Vary it to keep it interesting.
Cut wording that isn’t necessary. It’s what you leave out that counts. Lots of legal clauses are unnecessarily descriptive and duplicative when the natural interpretation of wording works.
For example, take your typical right to terminate for insolvency. The list of sub-clauses can stretch to over half a page. This does the same job:
“You and we can end this Agreement immediately on written notice to the other if the other becomes subject to a bankruptcy, insolvency, receivership, or similar event.”
2. Use the active voice
The active voice is stronger and easier to understand than the passive voice.
Active: the subject of the sentence performs the action -> subject, verb, object
Passive: the subject receives the action -> object, verb, subject
Active: “You must pay our invoice within 30 days.”
Passive: “Invoices shall be paid by Customer within 30 days.”
3. Use “you” and “we”
Unless there’s a real need for formality, “you” and “we” is much friendlier and more engaging than terms like “Supplier”, “Vendor”, “Customer” and “Company”.
4. Use common words and avoid jargon
Nobody talks the way lawyers write. Use the simplest words possible. For example:
| “Hereby”, “Whereas” | “The parties agree that” |
| “Herewith”, “Herein”, “Therein” | “With”, “In this Agreement” |
| “Shall” | “Must”/“will” (for obligations) “Is” (for statements of fact) |
| “Prior to” | “Before” |
| “Notwithstanding the foregoing”, “without prejudice to” | “In addition”, “However”, “This doesn’t impact our rights at X”, “Except that” |
5. Consider the tone of voice
Do you want to be formal or chatty? Respectful or irreverent? Serious or humorous? Matter of fact or enthusiastic? It depends on your audience and how you want to come across. For example:
Before: “The customer is strictly liable for any loss or damage to supplier’s property howsoever caused while in the customer’s possession.”
After: “Hire our bikes. Enjoy them. Bring them back in good nick (or we’ll have to chase you for more money).”
6. Avoid nominalizations
Nominalizations are a noun created from a verb or adjective. Like the passive voice, they can make writing dull and heavy. Some examples of normalizations are:
- Investigate -> investigation
- Difficult -> difficulty
Before: “The Partner will arrange an introduction to potential customers and facilitate a discussion about the purchase of Company’s products and services.”
After: “You will introduce us to potential customers to discuss our products and services.”
7. Use contractions
Again, unless a level of formality is necessary, use:
- “You’ll”, “we’ll”, “they’ll”
- “You’d”, “we’d”
- “Won’t”, “can’t”, “isn’t”, “don’t”, “weren’t”
- “You’re”, “we’re”, “they’re”
8. Change the viewpoint
Just flipping a sentence around makes a big difference to the tone and user-friendliness. For example:
Before: “Trainee solicitors must report to a senior member of staff for all the legal work they do in connection with their training”.
After: “As a trainee solicitor, you’ll be supervised by a senior member of staff”.
9. Implement these features
- Appropriate structure
- Summaries
- Lists/bullet points
- Signposts/headers
- Tables
- Consistent formatting
- Visuals (logos, colors, graphics)
10. Remember that no one-size-fits-all
Language that’s plain to one set of readers may not be plain to others. Always tailor the language to the intended audience.
Learning plain language principles is one thing. Applying them is another. It requires a real mindset shift for lawyers. They need to take a risk and get comfortable with ditching the long, legalistic text they’re so familiar with. Only then will things improve.
