A project which analysed why legal documents are so difficult to understand has won the Ig Nobel Prize for literature.
The Igs are awarded for research that "first makes you laugh, then makes you think", in advance of the actual Nobels.
With a fitting sense of occasion, Eric Martinez, Francis Mollica and Edward Gibson collected their prizes - a ten trillion dollar bill and 'build your own knowledge container' (a paper bin) - during an online ceremony in which a man in shorts blew a trumpet while riding an exercise bike.
It starts with a light-hearted award, then clients begin demanding laminated, illustrated one-pagers.
Their paper, 'Poor writing, not specialized concepts, drives processing difficulty in legal language', found that lawyers stacked their documents with features which hobbled comprehension.
The project, which looked at US contracts, found they were littered with non-standard capitalisation even though putting text in all caps HINDERS UNDERSTANDING.
Legal contracts were also seven times more likely than other texts to use the passive voice rather than the active voice, despite the passive voice posing more difficulties for readers.
And although words deployed infrequently in everyday speech tend to be harder for people to grok, the researchers found that legal documents featured a disproportionately high number of "archaic" words like 'aforesaid' and 'herein'. The team cited speculation that convoluted syntax was viewed by lawyers "as a potential badge of honor for those who wish to 'talk like a lawyer' and be accepted by their profession".
Center embedding - where a clause is placed in the middle of another clause - was also found to be twice as prevalent in contracts than other texts, despite evidence it poses processing difficulties for readers.
To test whether lawyers had to draft as they did in order to communicate specialised legal concepts, the researchers presented 108 people with a set of 12 typical contract clauses, and a set of the same 12 clauses in which they had excised the legal jargon and simplified the format.
Legalese v simple English.
The results indicated that “in many instances such jargon can be replaced with simpler alternatives that increase recall and comprehension while preserving meaning", said the team.
Giving the legal profession a dubious excuse for its incomprehensible drafting, they said that lawyers "may not choose to write in an esoteric manner".
"Similar to the 'curse of knowledge', they may not realize that their language is too complicated for the average reader to understand."
Mollica, a lecturer in Computational Cognitive Science at the University of Edinburgh, told RollOnFriday, "We are not interested in casting shade on people".
”Most of the lawyers we talk to are sympathetic and want to effectively communicate to people and we appreciate their help with our investigations". he said, adding that he didn't know if similar issues plagued the UK's legal documents, "but I wouldn't be surprised".
"Now, we’ll build on this to see why legal text is written this way and what kind of interventions could improve people’s interactions with legal writing."
Fails to reference the preferred method for US lawyers, namely writing the entire agreement in a single sentence with no punctuation or line breaks.
no surprise really. the yanks are far, far, worse at this than English lawyers. if you've ever had the misfortune to read US pleadings you will have found them paintfully verbose and awash with archaic language.
Whether you go by the original version or the simplified version, the first sentence is still pretty meaningless. The Landlord is exempt unless he acts "wilfully", but wilfully as to what? Is "wilful" intended to mean "with intent or recklessly" as opposed to negligently, and if so what is the necessary intention? And looking it the other way, how is it possible to act other than "wilfully"? Does this mean the Landlord is only exempt if their actions occurred whilst in a sleep-walking state?
The point surely is that what lawyers should strive for in their drafting is clarity and not just simplicity. The two frequently go together, but not always.
Did Lord Woolf write this article?
*spots split infinitive in Mollica's comment*
*writes off entire project*
Had the misfortune of reading an NY governed facility agreement the other day. Seriously, wtf - curious if anyone can explain why US governed docs are so incomprehensible? My only explanation is that it’s any easy way juice more billables (given that reading a single clause takes x5 longer than it otherwise should)…
The only thing more incomprehensible than standard legalese is non-standard legalese. The Supreme Court across the road from my shop has a display promoting the benefits of agreements done purely graphically. Yes, picture book contracts. It's like Banksy and Stan Lee had a terrifying lovechild. But in the future. No words. Both literally and figuratively.
Wow..What a piece of content here.
Thank you so much for this excellent write-up about lawyers.
They are not wrong. At the end of the day businesses need to use contracts so they should be reasonably comprehensible, at least around the main commercial provisions.