What is “plain” English?
For many years there has been a push, especially by consumer organizations, to require legal documents to be written in “plain English.” The revolutionary concept behind this campaign is to permit ordinary people to understand legal documents.
But what is “plain English”? It may be difficult to articulate what “plain English” is, but it resembles Potter Stewart’s characterization of pornography — “I know it when I see it.” Perhaps the easiest way of characterizing “plain English” is in the negative: it is not typical legal writing.
Plain English advocates seek, in one respect, to substitute simple pronouns like “I,” “me” and “you” for typical terms used in legal documents like “seller” and “buyer.” In this respect, they may have gone too far in an attempt to dumb-down legal drafting. There are many more important areas of concern before one needs to replace nouns with pronouns. It may be noted that some progress may have been made, albeit at a glacial pace, in the almost extinguishment of the identification of parties to an agreement as “the party of the first part” and “the party of the second part.”
Lawyers may be offended that the product of their craft is not appreciated by the general population, but should they be offended if they draft their documents in a language other than modern English? Why is it necessary for attorneys to use “legalese” to express themselves? Law, by its nature, may be a conservative profession that continues to express many concepts the way they were expressed centuries ago; for example, the distinction between law and equity. But we have gone from an agrarian society to an industrial one and is it necessary to hang on to the trappings of a bygone age? More importantly, is poor English an end in itself.
Described below, are some of the more common legalisms that make it difficult, if not impossible, for an ordinary English speaker to glean the substance of a legal document below the layers of silt added by the drafter.
Archaic Language. Where in a local newspaper have you seen the word “witnesseth”? Does any draftsperson know what it means? Does it pass spell-check on your computer? Typically this word is used as a caption for a preliminary introduction to an agreement. One could use any of the terms “preliminary statement,” “introduction” or “recitals.” But many lawyers continue to use “witnesseth,” a term that has come down to us from the age of Robin Hood, without any relevance in common speech or writing.
Related to the use of “witnesseth” in the introductory statements to an agreement is the use of the word “whereas” to introduce each factual recital statement. This word adds nothing to the content and can be omitted with impunity unless one wants to make the agreement sound like a proclamation used by a 13th century king of England.
More egregious, many affidavits drafted by lawyers conclude with the words “further affiant sayeth naught” or, in some corruptions, “further affiant sayeth not.” Perhaps Shakespeare would be appreciative that language used in his era has not changed in 500 years, but where in modern literature would one find such language and what does it add to a document that the period at the end of the penultimate or otherwise last sentence does not? If this phrase did not appear, would the reader keep reading even though there was no further content?
The “H” Words. These words, “herein,” “hereto,” “hereof” and “hereinafter” are the staples of legal drafting. While these words, other than “hereinafter,” defy precision, because it is never clear whether they are referencing a particular paragraph, section or the entire agreement, they are generally used as a shorthand for “in this document.” Typically the “shorthand version” requires the addition of a separate definitional section to clarify their meaning. You won’t see these words used in common parlance or even in nonfiction writing except perhaps the use of “hereinafter” referencing an existence beyond the grave. These “h” words are foreign to common parlance and exist only in legal documents perhaps as a beacon to identify the document: “this is a legal document!”
Run-On Sentences. Most effective writing consists of short sentences that are easy to digest and understand. Legal documents, however, in many cases try to cram several independent ideas into a single sentence. In order to accomplish this, they frequently use the conjunctive phrase: “provided, however, that.” This popular phrase is a signpost in any legal document alerting the reader: “run-on sentence ahead!”
The phrase can be omitted in almost all writings and replaced with a period. Try it and start the portion after the “provided, however, that” with a new sentence. An example of the ills of this practice is illustrated at the end of this article by an extract from an intercreditor agreement (an agreement between two lenders essentially sharing the same collateral) where a single sentence runs more than one page. Can the reader remember the context by end of this sentence? One may conclude that the use of this phrase assumes a reader cannot make the leap to connect two separate sentences into a unified whole.
Stupid Reader Syndrome. This term refers to a practice utilized in only one area outside of legal writing, check writing. Here the author assumes that a reader is without enough intellect to comprehend than when “30” days are referred to in the document, the author is referring to “30” days and not some other number of days. Therefore, in order to assist the reader, every time the author refers to a number, the number is expressed both in words and in Arabic characters. So, one of the parties must give the other “thirty (30) days’ notice” or there may be a “ten (10) day period” before some action can be taken. Lawyers do not limit this duplicate usage to lengthy legal documents; cover letters frequently include “two (2)” copies of an enclosure. Outside of the legal arena authors credit the reader with enough intelligence to comprehend a number when it is expressed either in a single word or a single character or set of characters.
Repetition. Perhaps lawyers suffer from a feeling of inadequacy in expressing themselves. Or, possibly, the idea is that if two words are good, six words are even better. In any case, lawyers frequently use multiple words to express the same concept engendering reader fatigue. Instead of stating “this amendment amends the terms of the agreement,” many lawyers opt for “this amendment amends the terms, provisions, agreements, representations, warranties and covenants contained in the agreement.”
Another form of repetition frequently utilized by attorneys is the use of couplets, two words used in conjunction when a single word will convey the same message. Frequently used couplets include: “terms and provisions,” “good and valuable,” “covenants and agreements,” “free and clear,” “each and every” and “any and all.” While certain of such couplets may be used in common speech, they seem to be used disproportionately in legal documents.
Miscellaneous. Finally, a relatively new legalism, “that certain,” has crept into legal jargon. This phrase serves little purpose other than a misguided attempt to try to pinpoint the accuracy of a description of a legal document. Using this construction, attorneys describe “that certain purchase agreement dated January 1, 2001 between Smith and Jones.” While this term might be useful in comparing two separate agreements, it typically is employed to describe merely a single document, frequently in the preliminary statement of an agreement. This phrase can easily be replaced with the more common terms “a,” “an” or “the.” Is anything gained by using “that certain” when the drafter goes on to describe the purchase agreement in detail? It does not appear that “that certain purchase agreement” is any more descriptive than “a purchase agreement” dated January 1, 2001 between Smith and Jones, yet it adds a legal flourish to the document.
It is doubtful that a contemporary author would succeed in career development using drafting techniques common in legal documents. Yet, attorneys are contemporary authors; they are authors of legal documents. These documents do not become more effective by utilizing archaic, repetitious or otherwise poor language that some may describe as legal “mumbo-jumbo.” There should be a certain amount of pride in authoring a document that is clean, clear and readable. Those who strive for this goal can share the same sense of accomplishment in their craft as an author of a current work of readable nonfiction.
Exhibit: An Extract From an Intercreditor Agreement
Modifications; Exercise of Remedies; Servicing
(a) The A Note Holder shall have the right without the consent of the B Note Holder in each instance to enter into any amendment, deferral, extension, modification, increase, renewal, replacement, consolidation, supplement or waiver (collectively, a “Loan Modification”) of the Mortgage Loans or the Mortgage Loan Documents, provided that, unless the A Note Holder shall have first obtained the written consent of the B Note Holder in each instance, the lien priority of the Mortgage may not be adversely affected and no such Loan Modification shall (i) increase the interest rate or principal amount of the A Loan, (ii) increase in any other material respect any monetary obligations of Borrower under the Mortgage Loan Documents, (iii) decrease, forgive, waive, release or defer the interest or the interest rate or principal amount of the B Loan or forgive, waive, decrease, defer or release all or any portion of the B Loan, (iv) shorten the scheduled maturity date of the A Loan, (v) increase the term of the B Loan to a date occurring after the A Loan maturity date, (vi) accept a grant of any lien on or security interest in any collateral or property of Borrower or any other Person not originally granted under the Mortgage Loan Documents unless the same shall also secure the B Note, (vii) modify or amend the terms and provisions of any cash management agreement with respect to the manner, timing and method of the application of payments under the Mortgage Loan Documents, (viii) cross-default the A Loan with any other indebtedness, (ix) obtain any contingent interest, additional interest or so-called “kicker” measured on the basis of the cash flow or appreciation of the Mortgaged Property, (x) release the lien of the Mortgage securing the B Loan (except in connection with a payment in full of the Mortgage Loans or with respect to a diminimus portion of the Mortgaged Property or as provided in the Mortgage Loan Documents as executed on the date of origination of the Mortgage Loans), (xi) spread the lien of the Mortgage to encumber additional real property unless the same shall also secure the B Note, or (xii) extend the period during which voluntary prepayments are prohibited or impose any prepayment fee or premium or yield maintenance charge in connection with a prepayment of the A Loan when none is required at the time the A Loan is closed or after the current maturity date of the A Loan or increase the amount of such prepayment fee, premium or yield maintenance charge or otherwise modify any prepayment or defeasance provision in a manner materially adverse to the B Note Holder; provided, however, that in no event shall the A Note Holder be obligated to get the B Note Holder’s consent to any Loan Modification including those expressly prohibited above, and the A Note Holder shall have the right without the consent of the B Note Holder in each instance, but subject to the servicing standard in Section 16(g) of this Agreement, to enter into any Loan Modification of the Mortgage Loans or the Mortgage Loan Documents, after the expiration of the B Note Holder’s or its designee’s right to purchase the A Loan as provided in Section 8 of this Agreement; provided further that no Loan Modification may adversely affect the REMIC status of any REMIC under a Securitization or result in the imposition of a “prohibited transaction” or “prohibited contribution” tax under the REMIC provisions (collectively, the “REMIC Conditions”) and provided further, during the period of time during which the B Note Holder or its designee has the right to purchase the A Loan, as provided in Section 8 of this Agreement, the A Note Holder shall have the right to enter into any Loan Modification of the Mortgage Loans or the Mortgage Loan Documents without the consent of the B Note Holder on not less than three (3) Business Days prior written notice in each instance, provided that the exercise by the A Note Holder of such right (i) does not violate the REMIC Conditions, (ii) shall occur only in the event of emergency or other circumstances where delay beyond the expiration of such period would have, in the A Note Holder’s reasonable judgment, an imminent, material adverse effect on the value or lien position of the Mortgage Loans or otherwise imminently, materially and adversely affect the enforceability of, or remedies available in respect of, the Mortgage Loans and (iii) shall in all events by subject to the servicing standard set forth in Section 16(g) of this Agreement.
This article is reprinted with permission from Law360.