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Plain English

Feb 22, 2012

For the record; there’s nothing wrong with using plain English in contracts. However, a lawyer’s interpretation of plain English can often be different to anyone else’s understanding of plain English.   With people becoming more “litigation aware”, the need to be precise with language in order to try and avoid potential disputes is vital. This is not to say that documents should be rife with legal jargon. In many cases, overuse of legal jargon can actually make things worse. It can be baffling when overused, or worse, misused. And it’s in these situations that a client’s desire for contracts to be written in plain English is entirely justified.   So why do lawyers try and steer away from plain English? First and foremost, we have to cater to the audience. When drafting a contract, it’s really important that we think of the worst case scenario, since we want to make sure that our client is properly protected should the worst occur. Invariably, a contract will be drawn up, signed and then saved in a drawer somewhere, never to be seen again. But what if something goes wrong?   As a result, we often think, if there is a dispute, what will another lawyer (or worse still, a Judge) think when they read this? By using terms that are commonly used, a contract can actually be much shorter than if we tried using “plain English”. This hopefully assists in ensuring negotiations run more smoothly and contracts are completed swiftly.   Using plain English has its merits. It can cut through legal jargon and actually help clients better understand their contract. A client’s feedback becomes more accurate, which in turn helps the lawyer draft a contract that better reflects a client’s requirements. Everyone wins.   We also understand that while contracts littered with legal jargon may offer the client great security (and help the drafter sleep at night), it can have a big impact on a client’s customers. Where your customer base is full of start up and/or small companies, you're not going to be too popular when you present that 50 page contract crammed with legal jargon for signature.   Inevitably, the way a contract is drafted will depend on the client, its circumstances, requirements and customer base. What will their customers expect?  What will they be prepared to sign? It’s a balancing act between using plain English where possible, with a light dusting of legal jargon. The best of both worlds really.