One of the funniest things about our profession is the tendency to overcomplicate very simple concepts with legalese. Some would argue that this is intentional, as a means to exclude laymen from understanding ordinary documents. I don’t think the motives are that sinister. I think that, for the most part, the tendency to overcomplicate things is a result of tradition and an unwillingness to simplify precedent documents. Others may feel slightly embarrassed to say something in a very simple way as opposed to saying it in a manner that sounds more “intellectual” or “lawyerly.”

I side with those who use simple language that everyone can understand. Sure, sometimes using legal jargon is unavoidable because of the body of case law that comes along with using a certain term, but do we really need to use the word “heretofore” if the words “before now” would work just as well?

Consider Dropbox’s “Terms of Service,” for example (https://www.dropbox.com/terms). Dropbox’s attorneys break things down into who has rights over “Your Stuff” and who has rights over “Our Stuff”. They also use everyday language that people can understand without consulting a legal dictionary, like “These Terms don’t give us any rights to Your Stuff except for the limited rights that enable us to offer the Services.” Perhaps these terms would be too casual in certain business contexts, but the point is that you can have binding legal obligations without formal language.

The reason I think it’s important to use simpler, less formal language in legal documents is twofold. First, I think that it’s important that the people who need to comply with the documents can do so without the need of a legal interpreter, and, second, I think lawyers themselves would get their point across better with simpler language. As I’ve mentioned before, legal documents are read by humans, not machines, and lawyers need to spend time considering their audience before choosing to include words that are no longer a part of everyday conversations.

Below are some examples of unnecessary jargon:

“Hereby“

• Instead of saying: “Section 3 of the Agreement is hereby amended to provide that X is hereby removed and deleted from the Agreement in its entirety and replaced with Y.”
• Say: “Section 3 of the Agreement is amended by deleting X and replacing it with Y.”
• Comment: “Hereby” is a very overused word in law and has very little practical purpose. Of course it’s true that the document itself is what is creating the legal obligations, so there is no need to say “hereby.”

“Whereas“

• Instead of saying: In a recitals section of a contract, “Whereas” this and “Whereas” that
• Say: “A, B, C” before each recital
• Comment: The beginning of the document sets the tone for the rest of the document. If the beginning starts out with several “Whereas” clauses, it can be intimidating for the end user and make the document seem unapproachable.

“Shall“

• Instead of saying: “On the date that is three business days after the effective date, Party A shall deliver to Party B copies of the documents”
• Say: “Party A must deliver copies of the documents to Party B three business days after the effective date.”
• Comment: Use of the word “shall” is becoming less common, not only because it’s archaic but also because it’s been interpreted by courts to mean a wide range of things, including “may.” (See: https://www.plainlanguage.gov/guidelines/conversational/shall-and-must/)

The current trend in the legal community is to move away from using legal jargon, so I’m not saying anything most seasoned practitioners aren’t already familiar with. I hope this post is an encouragement to younger lawyers to keep pushing forward in this direction – by using straightforward language in their legal agreements. As the jurist and judicial philosopher Learned Hand once said, “The language of the law must not be foreign to the ears of those who are to obey it.”