Does Drafting a Contract Really Require Learning Legalese?

Attorneys are often accused of writing overly complex and confusing documents, and nowhere does this seem to occur more often than in contracts – whether leases, purchase agreements, settlement agreements, or non-compete agreements. This type of writing includes phrases that only seem to exist in old books and new contracts – for example, “hereinbefore” instead of “above.”

There are a few reasons that lawyers tend to use these phrases – some good, some not. The most common reason is simple familiarity – if an attorney has drafted a particular type of contract and had it stand up to judicial scrutiny (meaning, if a judge or jury agreed with that lawyer’s interpretation of the language), then the attorney can feel confident in using that language again, even if there may be a clearer way of phrasing. This can also make drafting contracts much more efficient – by using common (to lawyers, anyway) phrases for certain parts of a contract, an attorney can focus more attention on other parts.

The disadvantage of legalese is, of course, the fact that no one other than attorneys generally understands it. And since a contract is an agreement, and hopefully one that all parties to it will live up to, it would certainly help if everyone understood their obligations. This is the primary reason that many attorneys are trying to incorporate more plain English into contracts, when possible.

The most important takeaway from this is that, even if a contract is legalese from top to bottom, your attorney should be able to explain it fairly quickly in plain language and should be able to either explain why it is written that way, or how to make it simpler.