Wednesday, October 24, 2012

How to Put One’s Own Foot In One’s Own Mouth

“The truth is rarely pure and never simple.” - Oscar Wilde

            More often than not, legal documents tend to be some fairly dense reads, however, no one expects the legal interpretation of the sale of “one orange for one dollar” to look like this:

Know all men by these presents, that Joe's Market, a Michigan corporation ("Seller"), in consideration of one dollar and other good and valuable considerations paid by John Smith ("Purchaser"), the receipt whereof is hereby acknowledged, does hereby grant, sell, assign, transfer and deliver unto Purchaser, its successors and assigns, to have and to hold unto Purchaser, its successors and assigns forever, one orange, together with all its rinds, skin, juice, pulp and pits and with all right and advantages therein, with full power to bite, cut, suck and otherwise to eat the same; and Seller hereby covenants with Purchaser that Seller is the true and lawful owner of the said goods and chattels; that they are free from all encumbrances and security interests; that Seller has good right to sell the same as aforesaid; and that Seller will warrant and defend the same against the lawful claims and demands of all persons, anything hereinbefore or hereinafter or in any other means of whatever nature or kind whatsoever to the contrary in any wise notwithstanding.
This is a wonderful example of legal writing at its most confusing.  First of all, this entire paragraph is all one sentence.  One might ask how that is possible, however, with the use of 17 commas, 4 semicolons, and 1 period the author has managed to string a series of separate ideas into one long winded and confusing statement.  Additionally, the next question that might be asked is “why” or “what is the point of writing like this?”  The plain and simple answer to that question is because it has become the normal way of writing in legal America.

            This style of writing poses an important problem. That problem is that an average, adult reader could not possibly read this once, twice, or three times and understand the intricacies of this prose. This can be proven in a scientific manner.  By using on this excerpt, which the author Martin J. Greenberg uses to illustrate “lawyers making the simple incredibly complex,” I have found the excerpt has an Average Grade Level of 56.1.  Therefore, in order to properly understand this part of the text, the reader must complete 40.1 years of schooling after receiving a bachelor’s degree to properly understand that text.  How absurd is that?

            Greenberg suggests a very similar idea in the introduction of his article, Drafting of Player Contracts and Clauses.  Greenberg states, “In essence, when drafting sports contracts, we should adopt the principle of S.U.C.S. (Simplicity - Understanding - Clarity - Standardization) or K.I.S.S. (Keep it Simple Stupid.).”  Essentially, Greenberg is agreeing that there is too much technical jargon in most legal prose or as Greenberg puts it, “we need to eliminate from our drafting the legalese, the parody of our legal prose, and the antiquity of verse derived from our English ancestry.”  However, it appears that Greenberg contradicts his eagerness for clarity with his own style of writing.

            Although Greenberg writes about the need for the elimination of the “legalese,” “parody,” and “antiquity” seen in legal prose, he does so in a way that could scare off many readers.  First, Greenberg’s word choice is extremely academic and far beyond the many readers’ level of comfort.  Certain studies have shown that the average, adult, American reader comfortably reads at a middle school level. This suggests that less common, academic words, such as “legalese,” “parody,” and “antiquity,” which all appear early in Greenberg’s article, could all be overlooked or misinterpreted by the readers of the article.  Personally speaking, I had to look up both the meanings of “legalese” and “antiquity” in order to fully understand the sentence and I do not consider myself an average, adult reader.  These are not the only words that a reader could find perplexing.  Greenberg also includes: arbitral, pursuant, and circumvent.  These three words are barely used colloquially and could alienate many different readers, too.

            Furthermore, Greenberg takes the time at the beginning of the essay to critique the example regarding the sale of one orange for being a one-sentence-paragraph.  He agrees that the elongated sentence structure often seen in legal drafts is unbearably dry and unreadable.  However, Greenberg is also guilty of the charge of such long-windedness.  Let us focus upon one example in which Greenberg writes:

As another example, the National Basketball Association Uniform Player the player and the club relating to any matter arising under this Contract, or concerning the performance or interpretation thereof (except for a dispute arising under Paragraph 9 hereof) such dispute shall be resolved in accordance with the grievance and arbitration procedures set forth in the Agreement currently in effect between the National Basketball Association and the National Basketball Association Players Association (hereinafter NBPA.)

There are many similarities to this passage and the one pertaining to the sale of an orange.  This is an example of a paragraph that is one sentence.  However, the difference between this and many other sentences are the multiple clauses present in this single sentence.  Plus, Greenberg writes at an elevated reading level using 89 words in this sentence and registering at an Average Grade Level of 36.4.  These pieces of evidence suggest that Greenberg could have heeded his own advice of keeping writing simple and split the complex sentence into shorter, more readable sentences.

            In addition to discussing the writers of legal texts, I want to stress the importance of the different audiences of both legal documents and Greenberg’s article and the activity systems, or contexts, which surround each audience.  First, let us look at the audiences for a legal document like a player contract.  The first audience of a contract is an employer.  The employer is motivated to create the document to legally bind the employee to the athletic team.  To do this, the employer and a legal team draft a document, which is used as a written instrument, to create a set of rules that the players will be governed by.  Additionally, the contract constructs divisions of labor since the player legally works for the employer after signing the contract and legal team also works for the employer because they were hired to draft the contract.

            The second audience of the player contract is the player or future employee.  The player is motivated to sign the contract in order to become employed.  However, players often do not have the necessary education to comprehend the legalese found in legal documents and must hire a specialist to help them better understand the document and negotiate certain sections of the contract.  By hiring a legal specialist, the player is establishing new divisions of labor because the specialist is now working for the player.  Building upon this, because the athletes rely up negotiators to interpret the articles, due to certain circumstances -- possible failure to attain a degree, a family pushing the athlete to pursue a career in sports -- the athletes resort to relying on the possible flaws in another’s interpretation.  This puts the athlete at a distinct disadvantage because they are treated as the targeted audience of the contract, but often fail to comprehend the employer’s, or “targeter’s,” language.

            Greenberg’s article is also readable by two different audiences.  The first audience is Greenberg’s desired one: lawyers, law students, teachers of law.  Essentially, the author writes to those who have received an education in law.  This audience is motivated to read this article to gain more knowledge of law.  The article is used as an instrument to gain the knowledge and those who share the knowledge of this topic create a community of those with similar knowledge.  However, this community of intellectuals cannot exist without the exclusion of another group.

            The other group, or audience, is composed of readers who do not specialize in the legal field.  Members of this group are also motivated to read this article to gain knowledge, whether it is for personal enjoyment or for an assignment.  However, like to the athlete reading the player contract, this audience lacks a background in legal documents.  Therefore, this audience does not understand the jargon or “rules” used when drafting legal documents.  The linguistic alienation the non-legal audience feels when reading legal documents might cause them to scrutinize the document for a possibly misguided interpretation or turn away from the document altogether.

            Although Greenberg attempts to show that modern legal writing is too legal, he also demonstrates that he is a product of his own field of study.  By paralleling legal prose, Greenberg writes with an overbearing use of clauses.  This forces the non-legal reader to slowly comb through his argument in order to justify an interpretation.  Greenberg’s style also seems to resemble one of the main purposes of legal writing, to create a document that attempts to eliminate all possible liabilities for someone.  Greenberg shows this style by writing long and complex sentences that attempt to logically string together multiple ideas to make his arguments academically impenetrable.

            One of the benefits of Greenberg’s writing is his acknowledgment of the importance of a more plain style of writing even if he doesn’t manage to execute that style himself.  However, being that the large majority of legal documents in our society contain an extreme amount of legalese, many readers, with both legal and non-legal backgrounds, have adjusted and adapted to this style.  Consequently, it is not unthinkable that Greenberg would write in a style that is widely accepted among his peers.

--Sam Hackworth

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