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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?
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 :
- Discriminates leadership, employees, prospects, partners, customers and recipients.
- Creates barriers to knowledge and Trust.
- 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.
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.
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.
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
Precision and risk
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.
|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. An 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.
|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.
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:
Bentham understood how legalese needs written for understanding and summarised the prejudice toward it.
Garner’s (2019) Guidelines for Drafting and Editing Contract (on Amazon) concurs.
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):
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.
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 improve everyone’s reading success and allow 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.
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.
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.
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.
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
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 is improved by rewarding the exceeding of targets.
Compliance content should mitigate our risk and protect our customers. Replacing discouragement with the 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.
Clump, orient, and signpost
Releasing relatable content in discrete and useable sections (clumping) organises learning and promotes recall. Clumping content into manageable pieces aids 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 understand the whole.
Orientating readers to the content they need and signposting it with headings, typographic hierarchies and navigation allow 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
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?
|Reader type||Website||Terms||Support||User platform||Customer platform||Administrator platform||Integrations and API|
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?
- 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
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
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?
- Your terms encourage visitors and service users to return your trust and to enjoy 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 on recourse and feedback.
- 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
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.
|Phase||Strategies||Positive Impact||Effort and Risk|
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.
Example update 2
Note: Hemingway “awards” lower reading grades to volume. Reading grades are measured from a sample section and are subjective.
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.
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