Ellen Phiddian
Even lawyers find “legalese” – the complex language in legal documents – worse than “plain English”, according to a new paper in Proceedings of the National Academy of Sciences.
The study found that while lawyers are better at interpreting legalese than the rest of us, they still recalled information from legal documents in plain English better than those in legalese, as well as rating plain English contracts as more likely to be signed by a client, and equally enforceable.
“No matter how we asked the questions, the lawyers overwhelmingly always wanted plain English,” says senior author, Professor Edward Gibson, researcher in brain and cognitive sciences at the Massachusetts Institute of Technology, US.
“People blame lawyers, but I don’t think it’s their fault. They would like to change it, too.”
Gibson, along with co-authors Eric Martínez and Dr Frank Mollica, won an Ig Nobel Prize last year for distilling which features of legal sentences made them so hard to understand.
They got 184 non-lawyers to read legal extracts, and picked out the parts of legalese that people had the most trouble with.
One standout was “centre-embedded” sentence structures: sticking a long, sentence-like definition in the middle of another sentence.
Here’s an example from their paper: “In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the ‘Total Payments’), would be subject to excise tax, then the cash severance payments shall be reduced.”
“For some reason, legal texts are filled with these centre-embedded structures,” says Gibson.
“In normal language production, it’s not natural to either write like that or to speak like that.”
It would be more understandable if all of the information in the brackets of that sentence were separated out as another sentence, like so: “In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All payments and benefits by the Company shall hereinafter be referred to as the ‘Total Payments.’ This includes the payments and benefits under Section 3(a) hereof.”
The researchers developed five possible hypotheses for why lawyers write in legalese, and in their current work they’ve tested all five with two experiments.
The five hypotheses are:
- Lawyers are so good at reading and writing in legalese that they don’t realise it’s difficult
- Lawyers copy and paste language from old contracts
- Legalese helps lawyers to sound “lawyerly” and improves their standing with colleagues
- Legalese keeps laypeople from being more engaged with laws and contracts, allowing lawyers to justify their high fees
- Legal information is so complicated that legalese is the only possible way to write it
The researchers asked lawyers to do the same experiments they’d got laypeople to do in their previous study.
In the first experiment, 105 lawyers were asked to recall information shown to them in documents written in both legalese and plain English.
Lawyers were, unsurprisingly, better at remembering information from legalese documents than laypeople. They could recall roughly 45% of the information given to them, as opposed to 38% for laypeople.
But both groups were significantly better at remembering information in plain English: lawyers recalled more than 50% of the information, while laypeople recalled 45%.
In the second experiment, the researchers asked 102 lawyers to rate documents based on a range of criteria, including enforceability, the client’s likelihood of agreeing to the contract, and whether they’d hire someone who’d written the document.
They lawyers rated plain English documents higher in many of these categories, including overall quality and hireability. They rated the plain English documents as equally enforceable as those in legalese.
This means that four of the hypotheses are completely refuted: the only one that still makes sense is that lawyers are just copying old contracts.
It’s possible, according to the researchers, that lawyers are doing this because the old contracts have worked before.
“Maybe an original contract was written for one set of people, and if you want it to be more restricted, you add a whole new definition of that restriction. You can add it within a sentence, and that ends up being centre-embedded,” says Gibson.
“That’s our guess. We don’t know the details of how, and that’s what we’re working on right now.”