“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 Readability-Score.com 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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