Horrible Documents: Bad Legal Writing

//Horrible Documents: Bad Legal Writing

Horrible documents and bad legal writing cross my computer screen every day. The same old templates get re-used and circulated over and over, whether they’re agreements, IT contracts, lease agreements or anything else. We believe that legal documents should be beautiful.

Why should you care?

You might ask: who really cares about horrible documents? Well, me for one – and you should too! Why?

  • They take a long time to sign. Horrible documents end up going back and forth between attorneys as they try to tease out the real meaning and effect of the agreement – like a terrible game of legal ping-pong.
  • The parties don’t have a clear understanding of their rights or responsibilities. This could lead to one (or both) parties breaking the contract because of a simple, easily avoidable misunderstanding. All because of bad legal writing.
  • Horrible agreements can lead to costly litigation. Litigation is a war that nobody wins; even if the judge or magistrate rules in your favour, you’ve lost time, money, energy and emotion in a fight that should never have been fought in the first place.
  • You can be fined for non-compliance with the law. Many Acts specify fines for failure to comply with them, and these fines are often backed up with the threat of possible imprisonment.
  • Long, horrible documents use more paper than necessary, which leads to increased logging and deforestation that also, of course, leads to global warming, the melting of the ice caps and the end of human life as we know it. Now you don’t want that on your conscience, do you?

What makes them horrible?

  • They’re too long. Everyone complains about long documents. Long documents tend to be tedious and difficult to read, and put you in a bad frame of mind before you’ve even started reading. Documents should be as long as they need to be. One page might be hard, but twenty pages or more is generally too long.
  • They’re badly structured. Important commercial terms (like fees) shouldn’t be hidden halfway down page fifty-three. Badly structured documents are full of clutter and unnecessary repetitions, without a clear indication of the most important parts.
  • They don’t reflect the transaction or relationship between the parties. For example, a Software as a Service is not a licence and the agreement needs to correctly reflect the nature of the goods or services being provided.
  • The language is old fashioned and legalistic.  “Notwithstanding the aforegoing provisions…” actually means “Despite that…”. Honestly, it does, but it sounds like it was originally drafted by a Roman emperor. Obscure language means that parties don’t know exactly what their rights and obligations are. All documents should be in plain language.
  • They don’t comply with the latest law. If the law changes, but the templates don’t, the template will very soon be out of date. This can expose the parties to risks that they’d rather avoid. For example, the template might not have a dispute resolution clause, which the King III™ code recommends it has. Or the clauses dealing with privacy or the processing of personal information were not drafted with POPI in mind, and as a result they don’t comply.
  • Templates get hacked to death. Changes might be made to the template for a specific deal, but these changes get made to the original template rather than to just the document for the specific deal. Before you know it there are five templates that all vary slightly and include various changes. If the wrong template then gets used for the next deal, the parties could be at risk.

Actions you can take about bad legal writing


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By |2019-07-08T09:44:03+02:00August 5th, 2014|Categories: Plain Language|Tags: , , |