How do we make legalese accessible?

Accessible legalese and the balance of law Reading Time: 23 minutes

I’m not a sofa-lawyer or legal executive. I invite you to read the following content, which is my opinion and you may find useful. Remember to ask an adult to guide you when you are unsure.

Legalese creates a pillar of trust between us, our customers, and their service users. It’s the specialist language of law. It communicates arguments between lawyers that will survive its scrutiny in courts.

There’s our problem. We’re not all lawyers and we can’t all afford to instruct one to read for us?

Problem

When we understand How people read (GDS, 2022a) and that writing for specialists (GDS, 2022b) is similar, we can recognise that our typical online legalese :

  1. Discriminates leadership, employees, prospects, partners, customers and recipients.
  2. Creates barriers to knowledge and Trust.
  3. Is largely ignored.

Trust and Responsibility

We seem to write compliance content for when a dispute occurs. It then defends our failure to communicate. We devolve all responsibility to our customer. That’s not a trustworthy strand to any relationship? We should inform our readers on what we expect of them, and support them in achieving that.

“…We can’t guarantee your audience. We can’t guarantee everyone will understand what you mean. But we can make sure we get as close to accessible for everyone as we possibly can, simply by being very, very clear.”

Richards (2014).

Compliance

Our website visitors, prospects, and service users are each a different persona. We want these ordinary people and trained lawyers to all understand and agree with our terms. The content may include full documents and micro copy within our user interfaces.

They (our readers) don’t have time to deconstruct sentences and contemplate clauses, they just want you to get to the point. Doing this shows you respect your reader’s time, interest and attention.

Vincent (2014) from Gov.uk’s blog post, Sentence length: why 25 words is our limit

Barriers

Legalese is often institutionally ableist. It’s not always written or presented to orient, navigate, or inform the digital reader. It may aim to guide a precise argument in court and fail with its suboptimal legalese and vocabulary.

You may specify a readability grade of Year 8 schoolchildren. Typical terms of use and conditions legalese remains Post Graduate level. It features an incomprehensible information architecture, dense content patterns, and a deep nomenclature. These are barriers to engagement and comprehension, and are invitations to risk.

Barriers include those we create for:

  • People with cognitive, motor, and visual disabilities
  • English as a second language
  • Localisation (L10n)
  • People with different expectations
  • People who do not have time or energy to read another agreement

“Over 1 billion people in the world have a disability, and out of all these disabilities, cognitive disabilities are the most common…Yet, many of the web accessibility discussions we have do not involve people with cognitive disabilities. We tend to have discussions about color blindness, blindness, and motor skills much more often.”

Tolu Adegbite, AxeCon 2022.

The problem isn’t only with terms of use contracts. There are “everyday” examples of our excluding our colleagues and service users, too. These include compliance interactions in our user interface. They need careful design for everyone to understand, agree to, and to action.

“If something’s broken, fix it. If you don’t know how, learn. If you’re not willing to learn, don’t complain about it.”

Mantra of unknown origin.

Precision and risk

Some of today’s terms of use may expose your enterprise to risk. In court, the presentation and vocabulary may fail to offer the full protection it is designed to give? 

Legalese aims to be precise. Interpretation is a risk. For example, the State of Utah suggests precision in its alternatives for Problematic Words and Phrases (PDF), which can result in complicated legalese. 

I checked a random terms of use document against the list and using the browser’s Find feature. The following table displays the results.

The precision of vocabulary written in a random terms of use document
Problematic term or word Usage in the terms State of Utah alternatives
Modify 7 Do not use. Use “change”.
Preceding 1 Do not use to refer to a… section or subsection. Instead state the specific… reference.
Require(ments) (meaning “need”) 49 (Require) do not use. Use “need”.

Note: This does not automatically indicate misuse. Analysis is needed.

Take action 2 Do not use. Use “act”.
Thereafter 1 Do not use. Use “after ___”
Whatsoever 6 Do not use.
Whether or not 2 “Or not” is usually unnecessary. To decide if it is needed, substitute “if” for “whether,” and if the “if” results in a different meaning, “or not” is needed.

Abajournal’s post, Ax these terms from your legal writing actively discourage words too: a “banned list”. Where these include “witnesseth“, they feel justified! But, “same”? When you understand why, then yes, even plain language needs to be precise and to exclude risk.

I compared the same random terms of use sample against Abajournal’s “banned list”. The following table displays the unexpectedly poor results.

Use of ‘banned’ of vocabulary written in the random terms of use document
Banned term or word Usage in the terms Abajournal’s reason for inclusion on the banned list
And/or 23 Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.”
Deem 6 The word deem should create a legal fiction, not state the truth…you’ll almost never need to create a legal fiction. So banish deem.
Herein 49 The problem with herein is that courts can’t agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph?
Provided that 2 Experts in drafting have long agreed that this phrase is the bane of legal drafting. It has three serious problems: (1) its meaning is unclear—it can mean if, except or also; (2) its reach is uncertain—that is, it may modify the preceding 12 words or the preceding 200; and (3) it causes sentences to sprawl.
Pursuant to  5 This is pure legalese…The rule-making body for federal courts has been stamping it out for more than a decade.
Same 5 Many lawyers use same as a pronoun because they think they’re being precise: I’ve received your notice and acknowledge same. In that sentence, is same really more precise than it? No…same is the source of an ambiguity in the U.S. Constitution so severe that a constitutional amendment had to cure it.
Shall 55 Courts have held that shall can mean has a duty to, should, is, will, and even may. The word is like a chameleon: It changes its hue sentence to sentence.
Such 116 Like so much other legalese, such is inherently ambiguous. Use it only as educated non-lawyers do. It’s only the lawyers’ use that causes trouble.

The art of legalese

Legalese is an art form of lawyers. Writers may help. Ultimately, mitigating risk takes priority. The juxtaposition between communicating and managing risk, and comprehension needs care in design. It needs to be both concise and satisfactory to each agreeing party.

Writing precision

Historical World-smarts on legalese conciseness are revealed in Garner’s (July 1, 2019) blog post, “Is jargon a ‘perversion of language’? Jeremy Bentham on legislation and legal style On the precision of legal discourse“. Garner, an editor for Blacks Law Dictionary, quotes the 19th century influencer, Jeremy Bentham:

“The greater the number is of the words that are employed in the expression of a given import, the less clear is the discourse which they compose…The conciseness of an expression is inversely as the number of words employed in the conveyance of the idea intended to be conveyed by it…

The science of legislation consists, therefore, in determining what makes for the good of the particular community whose interests are at stake…The rule is: let the whole mass of legislative matter be broken down into parts, carved out in such sort, that in hand, and thence in mind, each man may receive that portion in which he has a personal and peculiar concern, apart from all matter in which he has no concern…

Denominate, enumerate and tabulate. It facilitates reference and thereby, contributes to conciseness.”

Bentham in Garner (2019).

Bentham understood how legalese needs written for understanding and summarised the prejudice toward it.

“By the heaps of filth, moral and intellectual, of which legal jargon is composed, it becomes a perpetual source of disgust, and serves as a perpetual repellent to the eye of scrutiny.”

Bentham in Garner (2019).

Garner’s (2019) Guidelines for Drafting and Editing Contract (on Amazon) concurs. 

“…the subject matter can largely be expressed in normal idiomatic English, as opposed to the archaic jargon so commonly associated with it. When you draft using good style, and you use techniques that maximise readability and comprehension—without sacrificing precision—you’re achieving plain English.

How important is plain English? Extremely—if we want clients to understand what they are agreeing to…But plain English is hard to achieve because of the traditional deviations from it in transactional practice.”

Garner (2019)

Garner’s guidelines may assist with our drafting of compliance writing? Of note, in 2010 Garner received the Burton Award for Preeminent Legal Writing and Reference-Author of the Decade from the Library of Congress.

Plain language and legalese law

The US Plain Writing Act of 2010 requires federal agencies to write “clear government communication that the public can understand and use.” General activity toward the use of plain language in the legal profession includes guidance from the American Bar Association (1999):

“…the American Bar Association urges agencies to use plain language in writing regulations, as a means of promoting the understanding of legal obligations, using such techniques as:

  • Organizing them for the convenience of their readers;
  • Using direct and easily understood language;
  • Writing in short sentences, in the active voice; and
  • Using helpful stylistic devices, such as question-and-answer formats, vertical lists, spacing that facilitates clarity, and
  • tables.

To avoid problems in the use of plain language techniques, agencies should:

  • Take into account possible judicial interpretations as well as user understanding;
  • Clearly state the obligations and rights of persons affected, as well as those of the agency; and
  • Identify and explain all intended changes when revising regulations.”
Extract from plainlanguage.gov

Plain language and Web Content Accessibility Guidelines (WCAG)

WCAG 2.1 is updating to v.3 in 2022. The Web Accessibility Initiative (WAI) team have worked to clarify their recommendations and guidance on using Clear Words.

“Clear words guideline uses research-based strategies to improve the experience of individuals with cognitive and learning disabilities. Clear words help create more accessible content.”

WAI 2022, WCAG 3.0 Support Resources – Clear Words

The guidance lists reader scenarios that benefit plain language:

  • Clear words benefit individuals who live with cognitive and learning disabilities, language impairments, memory impairments, and autism.
  • People with language impairments often have a reduced vocabulary and learning new terms is a very slow difficult process. For other groups, such as people living with dementia, learning new terms is not realistic or possible. Using common words that they already know will make the content understandable and usable.
  • Simple tense, literal language, and active voice makes it clear what needs to be done for individuals who struggle to interpret implicit information.
  • Clear words improves everyone’s reading success and allows for a broader audience.

Solutions and standards

Compliance needs information experience design. It needs to be more than a defence at your enterprise’s next court appearance. We need a balance and some compromise. We should enhance our safe conduct of business, limit all risk, and promote trust.

Our customers and users should feel safe. They need to know that we are there for them and outline their boundaries. It’s a balance of two needs.

Write plain language

Plain language can be applied to all writing. It allows for technical vocabulary and a variety of style, tone and voice. It does not add verbosity although it may encourage it.

…experts often say that because they’re writing technical or complex content for a specialist audience, they do not need to use plain English. This is wrong. Research shows that higher literacy people prefer plain English because it allows them to understand the information as quickly as possible.

GDS (2022b). Content design: planning, writing and managing content: Writing well for specialists.

“Plain English is a way of presenting information that helps someone understand it the first time they read or hear it. When you use plain English, you

  • use clear, concise and accurate language,
  • order your points logically, including only necessary detail, and
  • use clean design to make your writing more attractive and easier to follow”
From Plain English And The Law (PDF) National Adult Literacy Agency (Ireland).

“Plain language is a writing technique that prioritizes simple words and straightforward sentence structures. It’s not used to “dumb down” content but to make content more widely accessible and easier for readers to consume.” 

From A guide for implementing plain language in your content (Writer.com)

Write inclusive legal content

The following is Gov.uk’s respected guidance resulting from their in-depth research undertaken to design their online public services.

Legal content can still be written in plain English. It’s important that users understand content and that we present complicated information simply.

  • If you have to publish legal jargon, it will be a publication so you’ll be writing a plain English summary.
  • Where evidence shows there’s a clear user need for including a legal term, for example ‘bona vacantia’, always explain it in plain English.
  • If you’re talking about a legal requirement, use ‘must’. For example, ‘your employer must pay you the National Minimum Wage (NMW)’.
  • If you feel that ‘must’ does not have enough emphasis, then use ‘legal requirement’, ‘legally entitled’ and so on. For example: ‘Once your child is registered at school, you’re legally responsible for making sure they attend regularly’.
  • When deciding whether to use ‘must’ or ‘legally entitled’, consider how important it is for us to talk about the legal aspect, as well as the overall tone of voice.
  • If a requirement is legal, but administrative, or part of a process that will not have criminal repercussions, then use: ‘need to’. For example: ‘You will need to provide copies of your marriage certificate’.
  • This may be a legal requirement, but not completing it would just stop the person from moving on to the next stage of a process, rather than committing a more serious offence.
  • Footnotes and legal language. Do not use footnotes on documents. They’re designed for reference in print, not web pages. Always consider the user need first. If the information in the footnotes is important, include it in the body text. If it’s not, leave it out.
Extracted from the UK’s Government Digital Service (GDS) hosted on gov.uk.

Write inclusive content

Accessible design needs inclusive content. Automated accessibility checkers don’t read our content. They only parse our code formatting. Although a useful tool, inclusive content needs more craft. Without inclusive content, an accessible presentation can be misunderstood. Misunderstandings breed risk.

Our agreements should be no less inclusive than any content we create.

The Writer’s Room blog suggests Accessible writing is just good writing.

Accessible content strategies we can use include:

  • Writing to Grade 8 reading level and other writing or information experience standards.
  • Using inclusive language and markup. For example:
    • Use semantic headings h2 to h6. (Bold copy is not a semantic heading.)
    • Avoid positional and sensory words. Action words are available like, “open a document” rather than “see” it.
    • Encode all acronyms and abbreviations within an <abbr> tag and include a title attribute value when needed.
    • Do not hard-code uppercase. Consider placing important content under appropriate headings with accessible emphasis.
  • Writing to motivate our personas’ compliance to achieve positive outcomes.
  • Breaking content into sections, bulleted and numbered lists, and tables.
  • Arranging sections by persona, scenario, and priority of user needs.
  • Offering short, TL;DR-styled executive summaries before complex sections.
  • Using CSS to visually style accessible HTML for notices, emphasis, and headlines.

Develop an inclusive writing culture

WCAG 3.0 offers the following strategies to encourage an inclusive writing culture.

During project planning, coordinate efforts with the project team to organize and schedule the approach to creating content written in clear words . Considerations to discuss:

  • If possible, secure content authors or editors with experience writing in plain language
  • Direct content authors to the clear words guideline
  • Provide training on how to develop content that uses plain language principles. Determine if you will create a style guide to clearly communicate the unique needs of your content. Plan and schedule iterative plain language quality assurance checks throughout the project cycle. Schedule time for cycles of editing.
  • If your content requires legal review, bring in legal experts early so they agree with using plain language.
  • If your content uses a lot of technical terms, idioms, jargon, metaphors or sarcasm, plan the time to write clear words summaries.
  • You may need a glossary section to define terms. This will need to be designed and coded.
From WCAG 3.0 Support Resources – Clear Words.

Following these strategies, it is not beyond reason to train our lawyers to write accessible legalese. The ideal remains to allocate writers.

Write for User Experience (UX)

Our readership experiences our writing. As a part of UX, our information experience (IX) should follow similar principles of:

  • Identifying reader groups by persona and scenario.
  • Planning the reader’s journey through documents.
  • Writing for usability and delight.

Your writing will be most effective if you understand who you’re writing for.

To understand your audience you should know:

  • how they behave, what they’re interested in or worried about – so your writing will catch their attention and answer their questions
  • their vocabulary – so that you can use the same terms and phrases they’ll use to search for content

When you have more than one audience, make your writing as easy to read as possible so it’s accessible to everyone.

Know your audience (GDS, 2022b)

Readability with ice cream

Legalese can contain technical language that makes using the Hemingway App frustrating. Write as well as you can and those terms will inflate the reading level. That’s when we can check Readability with ice cream. It’s a technique for checking, and not an excuse for your lazy writing.

Write customer-actionable actions

Our compliance copy is important information. Our Terms of Use is a lot to read and to understand. It’s not immediately actionable, which makes its content difficult to learn. The only “action” our reader can take is to, “walk away” (Wendel, 2014, p.146 ).

Writing relatable content improves its engagement. As humans, we learn by relating new information to existing experiences. Relatable content should speak to our reader’s immediate status and longer-term goals. It needs to motivate positive action.

Key Performance Indicators that punish poor compliance encourage a limited metric of Pass and Fail. Exceeding targets is unrewarded. Progressive KPIs reward and motivate our meeting with incremental and achievable compliance targets. Positive behaviour is encouraged and collaboration improved by rewarding the exceeding of targets.

Compliance content should mitigate our risk and protect our customers. Replacing discouragement with encouragement of positive actions motivates success. Encouraging success and supporting failure builds love, trust and responsibility.

The following table is modified from Wendel (2014, p. 151). It proposes design thinking around writing customer-actionable compliance content.

Wendel’s (2014) customer-actionable design thinking
Condition Design Thinking
Recognize barriers
  • You are providing readers with overwhelming levels of information.
  • You are not writing for a range of personas or their scenarios.
  • You are trying to make readers think like you do about an action.
Requirements
  • A behavioral plan describing how the reader moves from inaction to action.
  • Include how the product prepares and supports them in that action.
Aim to
  • Help readers understand they are people who naturally take action.
  • Help readers build associations between things they are familiar with and enjoy, and the new action.
  • Give readers clear instruction on what they need to do and all the essential information needed to do it.

Clump, orient, and signpost

Releasing relatable content in discrete and useable sections (clumping) organises learning and promotes recall. Clumping content into manageable pieces aides learning by giving our working memory time to process small information snippets well. 

Clumping reduces the sense of sensory and cognitive overwhelment. “Walls of text” can feel intimidating and be difficult to read, comprehend and understand. Presenting sequential clumps of relatable information scaffolds contributory contexts, ideas and knowledge necessary to understanding the whole.

Orientating readers to content they need and signposting it with headings, typographic hierarchies and navigation allows readers to consume what they want when they need it.

Dense patterns of text appear more complex. Short paragraphs add whitespace. The overall appearance of the content is made less dense and appears easier to read. There’s no rule to suggest one concept or clause must be contained within a single paragraph. Considering the concept or clause as a section of content, it can have many paragraphs.

Information architecture and timing

Content like our Terms of Use might need publishing as a single document? We can then organise its content using a skills escalator. Each persona needs to read and agree only to the product terms they need to consume for the product space they’ll consume. The following fictional table is an example of how the escalator could look for our users (caveat not researching your readers).

From the table we can identify what areas of our Terms each persona will need to agree to. A visitor researching our products or a prospect doesn’t need to agree to their integration with an API. The scenarios are different. They may want to read how, and they don’t need to agree to it at this time? 

Wendel’s (2014) customer-actionable design thinking.
Who needs what resource?
Reader type Website Terms Support User platform Customer platform Administrator platform Integrations and API
Visitor Yes Maybe No No No No No
Prospect Yes Yes Maybe Yes No No No
User Maybe Yes Maybe Yes No No No
Customer Maybe Yes Maybe Yes Yes No No
Administrator Maybe Yes Yes Yes Yes Yes No
Developer Maybe Yes Yes Yes Yes Yes Yes

Using the table we can sequence our content and even segment it? Visitors only read and agree to what they need to browse the public space. Developers read all that we need them to agree to. This escalator may argue that there should be separate terms for service users and customers?

Optimise formatting 

How we format and structure our content appears vital to its readability. Our Terms of Use formatting appears to increase its content’s complexity. 

After reading several terms of use documents when researching this Post, I fear the paper-print habit has driven a false economy of digital presentation space. Terms of use are formatted to save paper. 

  • The word count can exceed that of a thesis.
  • There’s seldom a table of contents.
  • There’s often little whitespace.
  • Headings are incorrectly marked up (like Amazon). 
  • The “small print” often is, even on a web page.
  • The whole document crafted in a list (to set nomenclature like Netflix).
  • Paragraphs are huge and sentences long.
  • Punctuation is used to excuse poor writing.
  • The column width is wider than is comfortable to reading.
  • Emphasis is awarded with all capitals or bold copy.
  • Feedback or contact information is at the end of the content.

HTML allows for improved and accessible semantics. We don’t mind scrolling and when we choose to print, then CSS can close some of the gaps. We can link between different content to meet different user scenarios too. Why agree to everything when we only need to use something?

Tip: You can code nomenclature using CSS counters to avoid formatting a whole document as an ordered list.

Timing and transparency equal trust

There is no point designing a beautiful and useful landing page when you can’t allow your visitor to consume it. It’s on the Web. It’s in the public domain, even if its content is protected by local law and regulations. Placing your terms of use link in the page footer is as good as hiding them, too.

How do we plan to share our terms of use of that page?

  • When our visitor can browse the full page content, why bury its terms of use in a separate space?
  • When the terms of use are in a separate document, do we offer a link to it, or push it forward as a gate sentry?
  • When we offer a link to the terms of use, is it obvious? Or do we hide it in the footer after the page contents it refers to?
  • Does our landing page need to be protected by our terms of use at all? Can you can remove risky content from the page instead? What can’t our visitor trust in your pitch, and why not?

Given that even end-user licence agreements (EULA) are essential to trust:

  • Why are they so difficult to read?
  • Why do they contain content that doesn’t apply to a user’s individual scenario?
  • How transparent is a design created to promote a button click behaviour rather than a behaviour of reading diligently?

There’s a real risk that:

  • Your visitors’ or users’ agreement was ill-informed.
  • Your timing, information, and behavioural design coerced the agreement.

Consider that big, juicy, and clickable call to action component. You’ve designed it to be attractive, distracting, and irresistible. There’s no need to read any page content. It calls out, “just click that one and only link and we promise to look after you”. Really?

Screen and print

HTML can be made accessible to the widest audience. Less so for PDF files and printed content. The best experience is to present your terms of use using HTML and to offer the choice to print it to PDF or paper.

There’s room for PDF when electronically signing a file, of course, or when presenting a historic copy of an agreement. And for everyday ease of reading and comprehension, HTML remains the most usable to the most people. I mostly recommend you say, Pffft to embedding PDF inside HTML.

What is success like?

A successful terms of use or other compliance copy agreement is frictionless. Our readers understand what they need to know and when they need to know it.

  • Your terms encourage visitors and service users to return your trust and to enjoy a shared loyalty.
  • Your terms facilitate your visitors’ and service users’ needs, safety, and tasks.
  • Your terms inform why and how the enterprise manages risk without threat or malice. (There’s rare!)
  • Your terms offer resolution and a focus for recourse and feedback.

Before design, it’s useful to understand what happens when our terms of use or compliance copy fails. The following questions may help:

  • Is your content environment safe from nefarious actors?
  • How are you protected from risk when you make your terms difficult to read or to understand?
  • How and when will you inform visitors that they must agree to your terms?
  • How do you encourage compliance?
  • What happens to your casual site visitors who don’t know of, read, or agree to your terms?
  • How do you punish non-compliance?
  • What happens to nefarious actors seeking to damage or plagiarise your content?

Develop your compliance story

Few website visitors who consume content are even aware that they are subject to any terms of use. Can you allow people to browse your landing pages without rules or threat? You can then use a compliance interface to collect your service users’ agreements. Update the agreement as your service users’ responsibilities grow. For example, when they become an administrator. You can gamify responsibilities and reward knowledge and sharing.

We’re starting to think about engagement. Do your published terms of use engage with, or dissuade business? How do you know? Yes, ask. We can user-test anything and our terms of use experience should be a priority. In many ways, it’s part of our metaphorical signage, our shop window, and our sales assistant all in one.

Update your crap legalese

Rewriting your crap legalese into something that’s accessible and inclusive may appear daunting. More so when you know it is verbose and complicated! So, start small and work incrementally through phases.

We can make some very simple updates and improve our reader’s experience. The following table lists the phases and effort required to update a complex terms of use document. It may offer a clue on what you need to achieve and how to achieve it in your own enterprise? A phased approach will work within an agile space, too.

Phases to update a large terms of use incrementally
Phase Strategies Positive Impact Effort and Risk

1

  1. Add semantic headings to sections and sub-section.
  2. Convert capitalised passages into Important notes.
  3. Add an automated “on this page” navigation by heading.
  • Improve orientation to content.
  • Enable navigation to specific references.
  • Improve reading ease and to some degree, the reading level.
  • Low effort.
  • No risk.

2

  1. Update visual style to match the site.
  2. Format inline lists as block.
  3. Add inter-section navigations.
  • Improve reading ease and to some degree, the reading level.
  • Enable speedy and accurate access to in-document cross references.
  • Low effort.
  • No risk.

3

  1. Update copy to meet writing guidelines (Grade 8, where possible).
  2. Arrange sections by user scenario:
    1. Site visitor
    2. Prospect
    3. Developer
  3. Update nomenclature to modern legal framework (numeric format 1., 1.1, 1.1.1).
  • Meet your enterprise writing guidelines.
  • Improve orientation to individual reader scenarios.
  • Improve reference to specific clauses and sub-clauses.
  • High effort.
  • Needs legal collaboration and review.
  • Updates will need agreement by existing clients when released.

4

  1. Add section summaries.
  2. Write-out remaining reading complexities.
  3. Update punitive punishments into positive user benefits.
  • Make reader-friendly.
  • Improve understanding and compliance.
  • Prioritise love and trust over fear.
  • High effort.
  • Needs legal collaboration and review.
  • Updates will need agreement by existing clients when released.

5

Testing

  • User testing conducted across market segments.
  • Revisions to improve content delivery.
  • Moderate effort.
  • Researchers test mixed visitor scenarios.
  • Changes may need continuing effort and legal collaboration and review.

6

Deployment

Best in class terms of use, user compliance, and reduction in risk.

  • None.
  • The hard work is done (Yay!)
  • Rejoice in great feedback and increased business.

7

Evaluation

  • Improved metrics.
  • Marketing.
  • Great feedback.
  • Media coverage.
  • Public story of success.
  • Ready for feedback cycle.
  • Minimal.
  • The hard work is done.
  • The result is awards, fame, and riches.

Example update 1

The following is a parody of legalese. In testing with the Hemingway App, the original paragraph has a reading level of Post Graduate. A strategy that can significantly improve readability scoring is to update inline lists to ordered or unordered lists. While not used here, the inline nomenclature strategy reduced the reading level to Grade 5.

This parody’s update addresses the complex and dense formatting. It is made more readable while the language of legalese and density can still occlude some people.

The readability tool may over reward the inline nomenclature, or disregard visual white space as a simplification? We need to understand if the update works for people using screen readers, and for people who have learning differences too. You need to test your updates for progress.

Reducing the paragraph into separate clauses, using ordered lists, and a mild rewrite to reduce sentence lengths, and our readers’ comfort will improve even when the reading grade doesn’t. Recall, this is a parody and not expertly crafted legalese.

Legalese parody demonstrating the effect of nomenclature on automated readability testing
Original (Grade Post Graduate)

Without prejudice: CLAUSE A. I have this prejudice toward prejudicial legalese: the overly-complex; poorly punctuated; discriminatory; and laid out; writing provided in vital policies (and their Clauses) and ‘legal notices’ that discriminates non-lawyers (i.e. people without professional or other legal training and expertise as may be available from time-to-time). CLAUSE B. And breathe! CLAUSE C. Add localisation and SHOUTING LONG SENTENCES IN UPPERCASE, WHICH IS MORE DIFFICULT TO READ WHILE OFTEN ALSO THE MOST IMPORTANT TEXT IN A DOCUMENT THAT SCREEN READERS DON’T PAY MORE ATTENTION TO, EVEN IN BOLD, and our reader will disengage and continue their misinformed journey.

Update with in-line nomenclature (Grade 8)

Without prejudice: CLAUSE A. I have this prejudice toward prejudicial legalese: (a.) the (i.) overly-complex; (ii.) poorly punctuated; (iii) discriminatory; (iv.) and laid out; writing provided in vital policies (and (b.) their Clauses) and (c.) ‘legal notices’ that discriminates non-lawyers (i.e. (i.) people without professional or (ii.) other legal training and (iii.) expertise as may be available from time-to-time). CLAUSE B. And breathe! CLAUSE C. Add (i.) localisation and (ii.) SHOUTING LONG SENTENCES IN UPPERCASE, WHICH IS (a.) MORE DIFFICULT TO READ WHILE (b.) OFTEN ALSO THE MOST IMPORTANT TEXT IN A DOCUMENT (c.) THAT SCREEN READERS DON’T PAY MORE ATTENTION TO, EVEN IN BOLD, and our reader will disengage and continue their misinformed journey.

Example update 2

The following is an update to one section of Apple’s Terms of Use. It is expertly crafted legalese with a reading level of Grade 16 and hard-coded uppercase text. With very few copy updates and the use of lists, the reading level is reduced to Grade 6. A minimal amount of content is updated. The writing can be improved further, especially when working with the legal professional responsible for assessing the risk.

Comparing Apple’s original legalese with a light update to its formatting and wording
The original (Grade 15)

Hemingway App score:

  • Grade 15
  • 330 words
  • 0 adverbs
  • 0 passive voice
  • 6 phrases with simpler alternatives
  • 1 of 12 (8%) sentences are hard to read
  • 6 of 12 (50%) sentences are very hard to read

APPLE DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. APPLE CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. APPLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APPLE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY APPLE SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST APPLE FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

Apple reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

The light update (Grade 6)

Hemingway App score:

  • Grade 6 (reduced from Grade 15)
  • 331 (an increase from 330)
  • 0 adverbs
  • 0 passive voice
  • 0 phrases with simpler alternatives (reduced from 6)
  • 2 of 35 (6%) sentences are hard to read (reduced from 8%)
  • 4 of 35 (11%) sentences are very hard to read (reduced from 50%)

Important: The disclaimers in this section apply to any damages, liability, or injuries caused by any one or more of the following actions or conditions, or by any other cause:

  • Alteration
  • Breach of contract
  • Computer virus
  • Communication line failure
  • Defect
  • Delay in operation or transmission
  • Deletion
  • Error
  • Failure of performance
  • Interruption
  • Negligence
  • Omission
  • Theft or destruction
  • Tort
  • Unauthorized access

By using the site you agree to the following:

  • You assume total responsibility for your use of the Apple site and any linked sites.
  • Apple delivers the site and its content on an “as-is” and “as-available” basis.
  • All information provided on the site is subject to change without notice.
  • Apple cannot ensure that the files or other data you download from the site are free of viruses, contamination, or destructive features.
  • Your sole remedy against Apple for dissatisfaction with the site or any content is to stop using the site or any such content. This limitation of relief is a part of the bargain between the parties.

Apple does not promise:

  • That the site or any content, service, or feature of the site will be error-free or uninterrupted.
  • To correct any defects.
  • That your use of the site will provide specific results.

Apple reserves the right to do any of the following, at any time, and without notice:

  • To update, suspend, or end operation of or access to the Site, or any part of the Site, for any reason
  • To update or change the site, or any part of the site, and any applicable policies or terms.
  • To interrupt the operation of the Site, or any part of the site, as necessary to perform maintenance, error correction, or other changes.

Apple disclaims the following:

  • All warranties, express or implied, including any warranties of accuracy, non-infringement, merchantability, and fitness for a particular purpose.
  • Any and all liability for the acts, omissions, and conduct of any third parties in connection with or related to your use of the site and, or any Apple services.

Sample agreements

The following are a handful of terms belonging to sites we may may visit from day to day. Some sites have more than one agreement. These represent what is believed the general terms of use and of service.

Note: Hemingway “awards” lower reading grades to volume. Reading grades are measured from a sample section and are subjective.

Hemingway scores for selected terms of use and of service
Document Hemingway scoring

Twitter terms of service

  • Reading grade: up to Post graduate
  • 5915 Words
  • 232 × sentences
  • 32 × adverbs
  • 43 × passive voice
  • 85 × simpler alternatives
  • 33 × sentences hard to read
  • 104 × sentences very hard to read

AWS Service Terms

  • Reading grade: 16
  • 33896 Words
  • 1668 × sentences
  • 222 × adverbs
  • 269 × passive voice
  • 387 × simpler alternatives
  • 191 × sentences hard to read
  • 673 × sentences very hard to read

Instagram

  • Reading grade: 13
  • 3477 Words
  • 154 × sentences
  • 21 × adverbs
  • 28 × passive voice
  • 32 × simpler alternatives
  • 21 × sentences hard to read
  • 63 × sentences very hard to read

W3C

  • Reading grade: 11
  • 859 Words
  • 57 × sentences
  • 4 × adverbs
  • 18 × passive voice
  • 15 × simpler alternatives
  • 10 × sentences hard to read
  • 15 × sentences very hard to read
TBC
  • Reading grade:
  • Words
  • × sentences
  • × adverbs
  • × passive voice
  • × simpler alternatives
  • × sentences hard to read
  • × sentences very hard to read

Summary

Legalese is content. It needs design and writing, deployment and reading, understanding and agreement. It needs to be consumable, transparent, and trustworthy. That includes being accessible and inclusive (and since 1999).

Writing legalese is collaborative. It needs specialist legal professionals and specialist digital writers. Go hook up. When you are on your own, then this content will hopefully be helpful.

 

 

 

Top

Leave a Reply

Your email address will not be published. Required fields are marked *