The "Consumerism Movement" of the 1970’s gave rise to the Plain Language Movement which, in New York, birthed the "Sullivan Law." The law required simplification of consumer agreements (contracts, including leases) and included a monetary penalty for violation of the Act. An amendment to the Sullivan Law that updates the $50,000 threshold to $100,000, passed the NYS Assembly and Senate and is now awaiting the Governor’s action. The Bill has not received the furor of attention that the original Sullivan Law received in the late 70’s. However, it will require a review of contracts and leases to see if they are now within the higher threshold of the law.
In the 1970’s the prospect of rewriting many Blumberg Leases and Contracts got my attention, and I sought out the "experts" for guidance. What I learned I summarized in the following article originally published in 1979.
Lawyers Can Write Clearly and Coherently
By Robert H. Blumberg
New York City
The purpose of this article is to assist you in creating clear and coherent contracts. It is not intended to be a scholarly treatise on the subject of legal writing. It is intended to alert you to the problems of language in contract writing and to suggest simple guidelines that will enable consumers to understand your contracts better. To accomplish this task all that is necessary are your legal skills, a good college level dictionary, a thesaurus and a grammar and punctuation reference book1.
De Novo Effort
It is common practice in contract drafting to find forms in files and form books and edit them for the particular needs of the client. When revisions are made over the years in response to legislation, case law and business developments, the resulting documents a) lack meaningful sequence, b) contain stilted language, c) are repetitious, and d) are difficult to read. Revising these documents sentence by sentence will not produce understandable contracts.
Legal contracts are usually intimidating, contain overly long sentences and are often visually unattractive. They have been written for lawyers by lawyers in highly compressed language. An immense amount of content is packed into a small quantity of words. The primary intent of the writer is to protect the client. Language is included to deal with obscure problem areas which will only affect a small number of consumers. This results in making the contract difficult for all consumers.
The suggestion that we discard the language of contracts has caused critics to raise many arguments. The most valid of these is that there will be a loss of precision. It is argued that the language to be discarded has been given the status of words of art by courts and legislatures. This may be true but not to a significant extent. Consider the principle underlying the “Sullivan Law” which is that “a party cannot be held to contract provisions not likely to have been comprehended (and thus agreed to) by the party.”2 If consumers do not understand the artful words, what is the point of preserving them? Courts read for intent. Which will they consider to be more understandable to the consumer, ”fixtures” or “things brought on to the property”?
The growing body of case law based on unconscionability and mutuality indicates the disregard of artful language by the courts. Legislation such as “Section 5.108 of the Uniform Consumer Credit Code (1974)” sets forth as a criterion for determining unconscionability the “inability to understand the language of the agreement”. David Mellinkoff in “The Language of the Law” (an exceptional book that is a must on everyone’s legal writing reading list) states, “As a thesaurus of circumstance, case law only rarely makes the pretension of being a dictionary of precise definition. Like soldiers who have been in ‘the army’ but not in ‘combat’ most of the words in the cases have been ‘in litigation’ but not ‘litigated’. And even when the words themselves are litigated, they have seldom come to rest for more than a moment. With each change of circumstance, they are prodded, stretched, squeezed and re-shaped.”
Not Simple or Absolute
The first legislation dealing generally with consumer contracts is New York’s “Sullivan Law,” GOL Section 5-702. It does not call for simple language. It requires that contracts be written in a clear and coherent manner using words with everyday meaning.3 It does not enact an absolute measure of simplified writing as many state insurance regulations do. The various psycholinguistic formulas, most notably the Flesch Reading Ease Scale, seek to quantify readability of language in numerical scores; other formulas equate these scores with school grades. The New York legislation did not take this approach.
What is clear and coherent to some is not to others. The same is true for words in common and everyday use. The language of law is in common and everyday use by lawyers. It would be appropriate for a contract to join a lawyers book club to use words quite different from a trade school’s enrollment contract.
Flexible Standards Necessary
In time language changes. Changing technology has rapidly advanced the rate of vocabulary change. Reliance on precedent and “litigated” words in the language of the law has broadened the extremes between a consumer’s vocabulary and the vocabulary of the lawyer. The message in this is that we must not create a new vocabulary of plain and simple words that will become themselves arcane. What is clear and coherent today, what is in common and everyday use today, will change.
A contract should be written so that in its totality a reasonable person in the audience to which it is addressed can understand it. I mention totality because in addition to the statutory requirements other criteria should be used. Information should be presented in a sequential fashion that is meaningful to the reader. The appearance and wording of the contract should indicate an attempt to help the reader understand it. The writer can evidence an intent to communicate by including material which is helpful and informative even though it may not be required by law.
No Mystique in Simplified Writing
There is no mystique in writing clearly and coherently. You speak that way every day. Think for a moment how you speak to the non-lawyers in your business and social environments. In describing a case or point of law to an experienced law partner or a junior law associate or a blue-collar client you most likely adjust your vocabulary, shorten your sentences and change the speed of your communication. Your audience determines the way you speak. Unfortunately, legal writing including forms drafting has always been directed to lawyers. In writing clear and coherent contracts, first consider who the members of your audience are and write to their level as you would speak to them.
Read Simplified Writing
Even before the compulsion of law many organizations simplified their documents. They found it to be good business (a hidden benefit has been a boost in morale of their employees who deal with customers). There are many of these simplified documents in circulation. Read them to get a sense of the way to write. The next time you are in a bookstore go to the section where law for laypersons or legal “how to” books are kept. Look through these books. How do these writers communicate technical and difficult materials to the reader?
Uncompress and Reduce
It takes more words to say things clearly. That’s O.K. if you don’t lose the reader. However, the longer the contract the less likely it will be read from beginning to end. Your only solution is to reduce content first. The New York 1 to 4 Family–9/78–FNMA/FHLMC Plain Language Uniform Instrument is a good case in point. The 13 word title doesn’t even tell you it’s a mortgage. It is 8 pages long and probably requires a 9th to incorporate the descriptions of the property. Although it is simply written, I believe many borrowers will never finish reading it. Use of the form shields the lender from damages and penalties under the “Sullivan Law” because the form was prepared by a government instrumentality.4 The irony is that the borrower pays the recording cost which is a multiple of the number of pages on the form. For this form the cost is 3 or 4 times the usual cost. The borrower is put in the strange position of paying increased recording costs to provide the lender with a complete shield against the ”Sullivan Law” which was enacted to protect the borrowing consumer.
It is senseless to draft simply written contracts that will not be read. Content must be reduced. Have you ever exercised a “deemed insecure” provision in a default clause? When the holder in due course doctrine was banished and removed from retail installment contracts, did the installment furniture industry collapse? Do not attempt to cover every eventuality. In consumer contracts the number of transactions is great and the value of each transaction is small. For each protection eliminated ask your client to estimate the dollar value of losses that might result. You will find that they are minor in comparison to the total business. In many instances these losses can be eliminated in pre-contract procedures such as applications and interviews. A good rule of thumb is to retain those protections you need when the times get rough.
If you are re-drafting existing forms or using a form book as a start, attempt to list every subject and legal nuance covered. Immediately, the problem of complexity of thought becomes evident. The foundation for your success will be laid at this point. Use the breakdown as a checklist. Eliminate as much as possible. Add any new matter to be included to the breakdown list. From this edited list your contract should be organized by grouping related items on the list into meaningful sequence. This means in the order of events. First, define parties, place and property; second, write down the obligations of the parties; and third, set forth the remedies.
Words, Sentences, Paragraphs
Use short, familiar words. Use short sentences. Express only one thought in a sentence. Use short paragraphs.
Active verb forms, imperative language colloquialisms and contractions are are useful if your client will accept them.
Eliminate archaic words and expressions (“here”, “where”, and “said” words “know all men by these presents”).
What do you call the contracting parties? In short contracts personal pronouns are clear and familiar. Be consistent in the contract and in all other contracts for this client. Perhaps it is better to use a personal pronoun only for the consumer and call your client by name or “the bank”, “the lender”, the “seller”, etc. Longer documents, particularly ones that are used often for reference (leases and insurance contracts) should employ the descriptive title (borrower/lender, landlord/tenant, etc.).
The “Sullivan Law” was amended to remove from the originally enacted version the mandate for “non-technical language.” Use technical language that is in the common and everyday use of your audience. If you instinctively want to define a word don’t use it. The word “lien” is in fairly common use among people having contacts in the financial community. It probably would be acceptable in contracts with homeowners in middle to upper middle income brackets. To others “claim” or “interest” might be better. “Lien” does not appear in elementary school dictionaries. The change in the law regarding technical language clearly would permit the use of legal real property descriptions (metes and bounds) and technical identification of personal property (electronic ratings to describe stereo equipment).
Avoid definitions, cross references, statutory references and incorporation by reference. By definition words needing to be defined are not clear and coherent. Never use hypothetical or arbitrary definitions. However, if cross references reduce content substantially, use them. A single remedy that applies to many contract obligations should be placed in a separate paragraph instead of being repeated throughout the contract wherever the obligations are stated.
Don’t use empty words (in the event that). Instead use plain talk (if). Don’t use bookish words (furthermore). Use plain talk (then).
Avoid couplets, triplets and repetitious synonyms, (remise, release and quitclaim). Avoid the “nail everything down” approach. Examples should be real and intelligent. Don’t use hypothetical examples.
Never make an exception to an exception.
Do not choose words to be flexible. A void combinations like adequate compensation, fair division, undue interference and and/or.
Readability Formulas Are Dangerous Instruments
Formulas do not measure conceptual complexity. They are comparative tools only. They measure words per sentence, multi-syllable words and number of words not in a prescribed list of common words. “To the park go Bob” receives the same score as “Bob went to the park.”
Formulas do not help you write. Their use may result in “Dick and Jane” language which is uninteresting and insulting to the reader.
Many states have adopted these formulas in their insurance regulations. New York has not. An 8th grade reading standard to be tested by formula is proposed in one state. In another a 12th grade standard is proposed. Can it be that the average readability levels between these two states is four years apart?
In a short contract, headings enable a reader to locate specific information quickly. In a long contract, a table of contents should be included to help locate the topic. Referenceability is very important in contracts that are frequently consulted by the consumer. Leases and insurance contracts are examples of these.
Alternatives, Successions and Outline Form
Alternatives and successions should be lettered or numbered, but please, no multiples of the letter “i”. In drafting complex clauses first outline them in sequence. For example, when I drafted a lease default clause I first drew up a list of defaults and then sequentially listed the resulting events, and the rights and obligations of each party. As I proceeded to rewrite the outline in paragraph form, I realized that the clause was easier to understand in the original outline form.
I have already discussed two determinants of readability: writing to the audience’s level of intelligence and the length of the contract. A third very important criterion is the visual appearance of the document. A well designed printed contract is much more readable than a typewritten contract.
Type face and size are the most significant factors in composition. Serif type faces have· finishing strokes projecting from the end of the main strokes in most letters. They give a horizontal appearance to a series of characters. It is generally thought that this horizontal appearance aids readability because we read horizontally. Sans-serif type faces do not have these finishing strokes (serifs). They are useful as headings in tabulated copy and directories. Unfortunately, sans-serif typefaces have been used extensively for text copy by commercial artists to obtain a contemporary look. The result has been poor readability.
Composers use a scale of 72 points to an inch to measure size. There are 12 points to 1 pica and 6 picas to one inch. Text should not be set in less than 10 point type, although 8 point may be used if there are real advantages in limiting the number of pages. Extra leading (space) should be set between lines. A minimum of one point leading should be specified and two points is optimum.
There must be ample space between headings, paragraphs and in margins. White space on the page aids greatly in avoiding reading fatigue. Line length should be 1) no more than 30 picas (5 inches) for a 10 point type or 36 picas (6 inches) for a 12 point type, or 2) no more than 12 words. A double column format using shorter line lengths is even better.
Interword spacing should be approximately ¼ to ½ the size of the type. This will depend upon the language used and the number of capitals. Larger word spacing will probably produce a river effect and make the copy very difficult to read.
Be cautious in specifying type where there are statutory type size requirements. A font of type designated “8-point Century” may not necessarily be 8 points in vertical height. These designations are only accurate in comparing different sizes of the same typeface. You must instruct your typographer that the type selected must measure from the top of the ascender line (usually the top of the capital letter) to the bottom of the descender line (usually the base line of upper case characters but some printers say the bottom of the lower case “y”. I prefer the former, a more conservative approach.).
In offset printing, the image is transferred to a printing plate through a camera lens. Offset cameras are not 100% accurate. An image may be increased or reduced in size. Consequently, the printed image may be smaller than the statutory requirements. Be conservative, use a typeface at least 1 point size larger than required.
Avoid visual confusion caused by too many different type faces and type sizes. Use emphasis, but use it conservatively. When you do use bold or italic faces, do not use all capital letters. All capital letters are very difficult to read and greatly reduce the number of characters on a line. For headings, initial capitals and lower case set in bold face are more readable than a row of capital letters.
The general public is more comfortable with traditional-appearing documents. Do not be guilty of overdesign. The initial visual impact should be a balance between readable typography and attractive appearance.
Select a recent piece of your legal writing. Rewrite it with the suggestions of this article in mind. Is there a difference?5
1 I found that using a legal dictionary was not helpful I used: Webster’s Seventh New Collegiate Dictionary, G. & C. Merriam Company; Harbrace College Handbook, Eighth Edition, Hodges and Whitten, Harcourt Brace Jovanovich, Inc.; Roget’s International Thesaurus, Fourth Edition, Robert L. Chapman Thomas Y. Crowell Company, Inc.; Webster’s New Elementary Dictionary, G. & C. Merriam Company; Webster’s Intermediate Dictionary, G. & C. Merriam Company; Webster’s New Students Dictionary, G.& C.Merriam Company.
2 Givens, The “Plain English Law” 50 New York State Bar Journal 479, 480 (1978).
3 GOL Sec. 5-702,a,1.
4 GOL Sec. 5-702,a,2.
5 If you wish to read more on the subject of clear and coherent writing the following will be of interest. Mellinkoff, David. The Language of the Law, Little Brown and Company (Boston, 1973); Felsenfeld, Carl & Siegel, Alan. Simplified Consumer Credit Forms, Warren, Gorham & Lamont (Boston, 1978); Givens, Richard. ”The Plain English Law,” 50 New York State Bar Journal 479 (October, 1978); Barzun, Jaques. Simple and Direct, Harper & Row (New York, 1975); Flesch, Dr. Rudolph. The Act of Readable Writing, 25th Ed., Harper & Row (New York, 1974); Dickerson, F. Reed. The Fundamentals of Legal Drafting, Little Brown & Co. (Boston, 1965).
The author has lectured for the Practising Law Institute, the Association of the Bar of the City of New York and Hofstra University. He is a graduate of the New York University School of Law and is President of BlumbergExcelsior, Inc.
Reprinted with permission from: New York State Bar Association Journal, October 1979, Vol. 51, No. 6, published by the New York State Bar Association, One Elk Street, Albany, NY 12207