Most real estate lawyers are articulate in oral conversation and able to clearly and succinctly express a particular position or thought. And some may even be good novelists.
But when it comes to drafting legal documents, the rule seems to be “legalese, please!” Legalese is a commonly used style of drafting legal documents that consists of torturing the English language for the alleged purpose of clarity and precision but which often results in the opposite.
Merriam-Webster’s Learner’s Dictionary defines legalese as follows: “the language used by lawyers that is difficult for most people to understand; legal jargon.” It is a language that relies on the use of archaic terms, poor grammar and sentence structure, and needless repetition. One commentator has described it somewhat differently: “Legalese—lawyers’ jargon—is turgid and annoying, adds nothing of substance, gives a false sense of precision, and obscures gaps in analysis.” Gerald Lebovits, On Terra Firma with English, Scribes J. of Legal Writing 2014–15, at 123.
Fortunately, we seem to have moved away from the identification of the parties to an agreement as “the party of the first part” and “the party of the second part.” This cloak of anonymity made it virtually impossible to identify which party was responsible for which obligations. And it was deservedly parodied in the Marx Brothers movie A Night at the Opera.
But most other legalese lives on. Typical legal agreements begin with a preliminary statement referred to as “Witnesseth,” continue with several “Whereas” clauses, and conclude with “In Witness Whereof.” Affidavits frequently conclude with the statement: “Further Affiant Sayeth Naught.” One would be hard pressed to find these archaic terms used in other styles of writing, but they do bear the imprimatur of making a document look “legal” to the same extent as in the age of Robin Hood. Outside of the legal profession, would words like “Witnesseth” pass a computer spell check? Does it add clarity to express some 21st-century concepts using 15th-century language?
Adding to the “legalness” of a document are the inclusion of the “h” words: herein, hereof, hereto, hereunder, and hereinafter. These words, other than “hereinafter,” defy precision, because it is never clear whether they are referencing a particular paragraph, section, or the entire agreement. Typically, the use of such language requires the drafter to add a separate definitional section to clarify their meaning because of their latent ambiguity. You will not see these words used in common parlance or even in nonfiction writing, except perhaps the use of “hereinafter” to refer to existence beyond the grave. But these words are typically liberally sprinkled throughout a document to serve as beacons that identify the document: “this is a legal document!” See Adam L. Rosman, Happy Warriors Agreement “Herein”: 10 Rules for Creating Better Legal Documents, N.Y. Law School, Center Projects, Book 12 (2016).
The acid test, however, for constructing a “legal” document is the repetition of numbers in Arabic characters and words. Where else would you find a 10-day notice described as “a ten (10) day notice?” This form of repetition appears predicated on the assumption that a typical reader will not be able to discern the meaning of a number unless it is repeated both as a word and an Arabic character. So engrained is this custom in the real estate legal profession that even the transmittal of two copies of a title commitment to a client will be referred to as: “enclosed please find two (2) copies of the title report.” Where else, other than check writing, is it necessary to employ both numbers and letters?
In dealing with sentence structure, legalese embodies two frequently employed concepts: run-on sentences and repetition. Run-on sentences are frequently accomplished by employing the phrase “provided, however, that.” This linguistic device allows the drafter to join two separate concepts in one extended sentence. In almost all cases, this phrase can be omitted and an independent sentence started without any loss in meaning.
As an example, the following:
“ Waste” means any material abuse or destructive use (whether by action or inaction) of the Property;
provided, however, that demolition, earth moving and other pre-development activities at the
Property required in order to complete construction of the Project in accordance with the Loan
Documents shall not constitute Waste for purposes of this Agreement.
can be rewritten as follows:
“ Waste” means any material abuse or destructive use (whether by action or inaction) of the Property.
Demolition, earth moving, and other pre-development activities at the Property required in
order to complete construction of the Project in accordance with the Loan Documents shall not
constitute Waste for purposes of this Agreement.
The theory that underpins repetition is that if one or two words are good, six or eight words are better. Why refer to the “provisions” or “terms” of a purchase agreement when you can mention the “terms, provisions, covenants, agreements, representations, and warranties” of the purchase agreement? Rather than adding to the clarity or readability of the document, the use of surplus verbiage bogs down the text and induces reader fatigue.
Another form of repetition frequently used is 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.” Here again, the use of two words when one will convey the same meaning adds nothing to a document but verbosity.
A further example of wordiness and run-on sentence structure follows.
Borrower (i) shall observe and perform the obligations imposed upon the lessor under the Leases in a commercially reasonable manner; (ii) shall enforce the terms, covenants, and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed in a commercially reasonable manner; provided, however, Borrower shall not terminate or accept a surrender of any Lease without Agent’s prior approval, except to the extent required under any Lease; (iii) shall not collect any of the Rents more than one (1) month in advance; (iv) shall not execute any assignment of lessor’s interest in the Leases or the Rents, and (v) shall not alter, modify or change any Major Lease so as to change the amount of or payment date for rent, change the expiration date, grant any option for additional space or term, materially reduce the obligations of the lessee or materially increase the obligations of lessor.
Borrower shall both comply with lessor’s obligations and enforce lessee’s obligations under the Leases in a commercially reasonable manner. Borrower shall not (i) terminate or accept a surrender of any Lease without Agent’s prior approval, except to the extent required under any Lease; (ii) collect any of the Rents more than one month in advance; (iii) execute any assignment of lessor’s interest in the Leases or the Rents; or (iv) modify any Major Lease to change the rent amount, rent payment or lease expiration date or grant any option for additional space or term or materially either reduce lessee’s obligations or increase lessor’s obligations.
There is a perception among new lawyers, and even among seasoned lawyers, that writing in plain English dumbs down the language of the instrument. This is surely the case in some consumer forms in substituting “I” and “you” for “buyer” and “seller.” But there is a wide gap between using overly simplistic language and employing legalese. It has been noted that
Writing in plain English need not mean giving up sophisticated use of language and affecting a chatty informality. On the contrary, it requires sophistication to produce documents that are consistently coherent, clear and readable. By contrast, this specialized tongue of lawyers, legalese, may even be easier to write because it relies on convention instead of thought. At best, however, the result is wordy, pompous and dull. At worst, it is unintelligible.
Barbara Child, Language Preferences of Judges and Lawyers, a Florida Survey, 64 Fla. Bar J. 32 (Feb. 1990).
This concept has been otherwise aptly expressed in a quote attributed to Winston Churchill and others: “If I had more time I would have written a shorter letter.” In surveys of judges and attorneys, the overwhelming percentage of respondents opted for plain English over legalese. See Joseph Kimble & Joseph
A. Prokop Jr. , Strike Three for Legalese, Mich. Bar J., Mar. 2014, at 40; Child, supra.
In fact, in a survey in 1988 sent to 1,116 Florida judges selected at random that contained six phrases written in two different styles without identifying legalese but only a “test of language trends in the legal profession,” the preparer of the survey received 628 responses: 352 came from judges and 279 from lawyers. The judges preferred plain English in 86% of their responses and the lawyers in 80%. Child, supra. Similar results were reported from studies in Michigan. Joe Kimble, You Think Anybody Likes Legalese?, Mich. Bar J., Aug. 2013, at 52.
The courts have been critical of the use of legalese. “[This is a] document full of legalese that can make a Byzantine scholar proud.” State of Wisconsin v. Eason, 629 N.W.2d 625 (Wis. 2001) (dissenting opinion). See also Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App. 2013) (Cochran, concurring opinion) (“These instructions are 100% legalese. They make no sense”).
One commentator has noted:
It turns out that law clerks and judges believe that those who write in legalese are lousy lawyers—the more the legalese, the lousier the lawyer. Benson and Kessler also provided the reverse. Everyone believes that the less the lawyer uses legalese, the better the lawyer is.
But is there any downside to the use of such language? Ordinary individuals are intended to be bound by legal instruments not otherwise decipherable as written in the English language, and courts have refused to enforce such agreements to the detriment of the drafters. See In re Benninger, 357 B.R. 337 (Bankr. W.D. Pa. 2006) ; Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054 (11th Cir. 1988); Nicosia v. Wakefern Food Corp., 643 A.2d 554 (N.J. 1994).
Beyond the issue of enforcement, why is it necessary to draft documents far removed from common English? Why does the poor use of the English language, with run-on sentences and unnecessary repetition, make a document “legal”?
Dissenting views on the use of legalese have been expressed:
One reason so called “legalese” still exists is based on how court decisions are made . . . . “Legalese” is one way a skilled lawyer can make a document more concise while also protecting the client from future battles over word meanings.
Bo Bingham, The Legal Lowdown: Lawyers Speak “Legalese” for a Reason, The Spectrum, Oct. 6, 2015.
The author of this quote concludes his analysis of legalese by extolling the virtues of using Latin phrases. But legalese, as noted above, is not limited to the use of a foreign language. Rather, we are primarily dealing with the poor use of the English language.
A more pseudo-scientific justification is offered by Soha Turfler:
In many ways, the ideologies of the Plain Language movement follow the model of language subordination as described by sociolinguist Rosina Lippi-Greene, in which one language variety is subordinated to another through a process of mystification, prescription, and standardization. Mystification occurs whenever self-appointed language guardians claim that language is in decline and in need of correction. Prescription occurs when those same guardians then claim authority to prescribe rules for language use, legitimatizing certain usages or styles while stigmatizing others. Finally, standardization occurs when guardians perpetuate the notion that these rules will lead to a purer and superior standard for all language use. The Plain Language movement has followed these subordination processes to a large extent in its quest to rectify the problems it has associated with legalese. But each of these processes are based on specific myths about language that are criticized by current sociolinguistic literature. As self-appointed language guardians, Plain Language advocates should therefore be aware of the following three myths: prescriptivism, standard language ideology, and moral superiority.
Soha Turfler, Language Ideology and the Plain-Language Movement, How Straight-Talkers Sell Linguistic Myths, 12 Legal Comm. & Rhetoric: JALWD 195 (2015), at 205 (footnotes omitted). Yes, this author could not understand this quote either.
Any attorney who believes the use of legalese is benign should be ordered to spend time reviewing and deciphering language appearing in many securitized financing documents. An extract from one appears as Exhibit A. This exhibit, dealing with superior and subordinate notes secured by the same collateral, intends to address the ability of the holder of a primary note to modify the security documents without the consent of the holder of a subordinate note. It illustrates one of the numerous examples in which a single sentence can run an entire page or more. Employing blockbuster sentences, commonly referred to as run-on sentences, often makes it impossible to understand the content of such provisions with a single reading. Try it for yourself with Exhibit A. This extract has been rewritten in Exhibit B to illustrate the contrast between legal writing and normal English.
If legalese is criticized by the general public, judges, and many lawyers, why is it perpetuated and so prevalent? A number of factors are involved. Young lawyers, who might otherwise write in plain English, are typically trained by more senior lawyers, who do not. These senior lawyers have been schooled by their predecessors in the art of drafting legal documents. The message is subtly conveyed to younger attorneys that legalese is the appropriate and preferred style for drafting legal documents. And few disabuse them from this conclusion.
Another culprit is modern document production. Real estate lawyers rarely create new documents ab initio. This would be a time-consuming and expensive process. They either use or are instructed to use a document from a former, similar transaction or, alternatively, search the firm’s document management system for a like-kind document. This results in a self-perpetuating style of drafting with legalese.
Lastly, there is no financial or moral reward for “cleaning up” documents stocked with legalese. The removal process would be time-consuming and expensive in terms of billable hours. It would likely subject any author attempting to draft in simple English to scrutiny for committing too many hours to a time- and dollar-sensitive practice. See Claire A. Hill, Why Contracts Are Written in “Legalese,” 77 Chi.Kent L. Rev. 59 (2001).
So, unless there is some outside force encouraging law firms to move their drafting style into the 21st century, it appears we may be locked in the 15th century for many more years to come. One commentator has noted: “The case for plain language is altogether solid. All the myths and misconceptions about it have been debunked. What remains is for lawyers to summon the will and develop the skill to do it. Their readers have spoken.” Kimble, supra, at 53.
It is incumbent on senior management of law firms to recognize “legal writing” for what it is: poor writing. Lawyers should not get a pass on writing in good English because they draft “legal” documents. If the effort is made to clean up documents in firms’ document management systems, we can hopefully reach the day when legal documents can be read by ordinary mortals.
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 de minimis 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 ___ 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 ___ 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 ___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 be subject to the servicing standard set forth in Section ___of this Agreement.
Modifications; Exercise of Remedies; Servicing
(a) Except as indicated below, the A Note Holder has the right, without the consent of the B Note Holder, to enter into any modification replacement, consolidation, supplement, or waiver of the Mortgage Loans or the Mortgage Loan Documents (collectively, a “Loan Modification”).
(b) The written consent of the B Note Holder is required for any Loan Modification if the lien priority of the Mortgage would be adversely affected. Such written consent is also required if any Loan Modification: (i) increases the interest rate or principal amount of the A Loan, (ii) increases, in any other material respect, any monetary obligations of Borrower, (iii) decreases, forgives, waives, or defers the interest or the interest rate on the B Loan or all or a portion of the B Loan’s principal amount, (iv) shortens the scheduled maturity date of the A Loan, (v) extends the term of the B Loan to a date occurring after the A Loan maturity date, (vi) accepts 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 such lien also secures the B Note, (vii) modifies any cash management agreement regarding the manner, timing, and method of the application of payments under the Mortgage Loan Documents, (viii) cross-defaults the A Loan with any other indebtedness, (ix) grants any contingent interest, additional interest or a so-called “kicker” measured by the cash flow or appreciation of the Mortgaged Property, (x) releases the lien of the Mortgage securing the B Loan (except upon payment in full of the Mortgage Loans or from a de minimis portion of the Mortgaged Property or as otherwise provided in the initial Mortgage Loan Documents), (xi) spreads the lien of the Mortgage to additional real property unless the spreader also secures the B Note, or (xii) extends the period during which voluntary prepayments are prohibited or imposes any new or increased prepayment fees or premiums or yield maintenance charges for a prepayment of the A Loan or for payment after its current maturity date or otherwise modifies any prepayment or defeasance provision in a manner materially adverse to the B Note Holder.
(c) The A Note Holder is not obligated to obtain the B Note Holder’s consent to any Loan Modification, including those described in clause (b), following the expiration of the period in which the B Note Holder or its designee has the right to purchase the A Loan, as provided in Section ___ of this Agreement (“Purchase Period”). A Loan Modification without the B Note Holder’s consent may also be made during the Purchase Period if (i) three Business Days prior written notice is given to the B Note Holder and (ii) an emergency or other circumstances is involved where delay beyond the expiration of the Purchase 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 would otherwise imminently, materially, and adversely affect the enforceability of, or remedies available in respect of, the Mortgage Loans.
(d) No Loan Modification may be inconsistent with the servicing standard in Section ___ of this Agreement, 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.
This article was first published in the November/December 2017 edition of the American Bar Association Probate & Property Magazine (Volume 31, Number 6).