Legalese – beyond the text wall

Legalese – beyond the text wall

Many of our cus­to­mers are start-ups or gro­wing busi­nes­ses and have appe­aling pro­ducts and big ide­as. They invest their time, talent, and money in crea­ting a brand, engi­nee­ring e-com­mer­ce net­works, deve­lo­ping mar­ke­ting stra­te­gies and hiring law experts to get their papers done right. Being awa­re of the fact that a busi­ness needs a sound legal basis, they invest a big share of their bud­get to crea­te essen­ti­al docu­ments like T&Cs, sam­ple con­tracts and data pri­va­cy-com­pli­ant noti­ces. And then they just set them aside.

The Gene­ral terms and Con­di­ti­ons are the Bible of each and every busi­ness rela­ti­ons­hip you crea­te. They defi­ne rights and duties and are the incar­na­ti­on of the spi­rit of good faith – the main pre­re­qui­si­te of every deal. When agre­eing with them, cus­to­mers are signing a con­tract. Howe­ver, the­se are not some­thing that you put on top of your home­page, while boas­ting about how gre­at they are. If they are so important, why not put them on a pedestal?

The ans­wer is simp­le, alt­hough qui­te tri­vi­al. Nobo­dy wants to sca­re their cus­to­mers away with a text wall pop­ping up when they click on the small link lea­ding to the T&Cs. Ever­y­bo­dy knows how it feels when you try to read the T&Cs, while signing a new mobi­le pho­ne con­tract, for examp­le. On page 5 you alrea­dy feel exhaus­ted and over­whel­med by the infor­ma­ti­on. The incom­pre­hen­si­ble lega­li­se makes you ask yourself if it was writ­ten with the pur­po­se to con­fu­se you and make you feel igno­rant or not. Big, capi­ta­li­sed para­graphs pre­tend to empha­sise the most important infor­ma­ti­on with the effect that they just make you more anxious. Not to men­ti­on the fine print, made on pur­po­se ille­gi­ble for an unar­med eye, lea­ving you with the slight sus­pi­ci­on that the­re is some­thing hid­den that you can’t spot wit­hin all the­se words and com­pli­ca­ted sentences.

Common people usually choose one of these strategies:

  • They sign without rea­ding expo­sing them­sel­ves to the risk of liti­ga­ti­on.
  • They read it and keep on pre­ten­ding to under­stand while still having no clue.
  • They hire a legal coun­sel to read it for them.

What solu­ti­ons can com­pa­nies imple­ment for this pro­blem? A very com­mon solu­ti­on is just a popup win­dow with 2–3 boxes that you have to tick and a big but­ton say­ing, “I agree”. Simp­le, clear and inter­ac­ti­ve. But is this not just sweeping it under the carpet?

As an entre­pre­neur it is up to you how you deal with this pro­blem. It is a mat­ter of trust and trans­pa­ren­cy towards your cus­to­mers to exp­lain to them what they are signing up for. Have you ever thought about making your legal docu­ments under­stand­a­ble, cus­to­mer-friend­ly, and stand out from your com­pe­ti­tors’ legal documentation?

No mat­ter how much time you invest in exp­lai­ning your busi­ness phi­lo­so­phy and con­cept, when you don’t pro­po­se a clear state­ment what con­di­ti­ons app­ly to your ser­vices, you don’t give the right mes­sa­ge to your cus­to­mers. The decisi­on isn’t to pocket the legal docu­ments into the bot­tom of the home­page and to lea­ve them sole­ly to the legal experts hoping that they will never need to refer to them. Why should it not be trans­la­ted into lay lan­guage com­bi­ned with a clever legal design, making them an inte­gral part of your brand?

Remem­ber: The limits of your lan­guage are the limits of your business.

Let’s talk about legal design and language of legal documents

It is very important to be awa­re of your audi­ence: in a B2B situa­ti­on it is most likely that the­re will be law experts invol­ved in the com­mer­cial nego­tia­ti­on, so you can stick to the tra­di­tio­nal way of legal wri­ting and just lea­ve them to talk lega­le­se. In B2C, the­re is defi­ni­te­ly a need for clear com­mu­ni­ca­ti­on, lea­ning towards lay language.

Befo­re giving you some hints on how to crea­te read­a­ble legal docu­ments, remem­ber: a lot of busi­ness agree­ments are ver­bal and don’t even need a writ­ten form to beco­me enfor­ce­ab­le and cer­tain­ly the­re are no regu­la­ti­ons about lay­out and visu­al ele­ments. The­re are cer­tain requi­re­ments regar­ding the con­tent, and they must tho­rough­ly pro­tect your inte­rests, but legis­la­tors do not enfor­ce rules on how to wri­te it. You can deci­de how to say what you have to say – the wor­d­ing is ent­i­re­ly up to you (and your lawyers).

Define the style and leave the content to your legal counsellors

Plain language: pros and cons

The­re are rea­sons for using legal terms and why they have sur­vi­ved for cen­tu­ries even though ever­y­bo­dy hates them. Every legal sys­tem deve­lo­ps a pro­per law lan­guage with the main scope to pre­vent liti­ga­ti­ons over the mea­ning and use of lan­guage. By defi­ning terms to use, for examp­le in com­mer­cial con­tracts, that are uni­ver­sal­ly accep­ted to descri­be con­di­ti­ons and pro­ces­ses, and the­re­fo­re the aut­ho­ri­ties save time and public money. Think about Inco Terms: with a simp­le three-let­ters-acro­nym like CPF you can sett­le on respon­si­bi­li­ty, risk and logistics of both par­ties. So the­re is no way to argue those.

The second rea­son for crea­ting this awk­ward lan­guage it to assu­re pre­cisi­on and accu­ra­cy. Lawy­ers wri­te their docu­ments knowing that they will be scru­ti­ni­zed for loo­p­ho­les by a hos­ti­le audi­ence and don’t like to take hazards by using non-con­ven­tio­nal for­mu­la­ti­ons that can result to be imprecise.

The third rea­son: habits. Some argue that lawy­ers con­ti­nue draf­ting docu­ments so to pre­ser­ve mys­tique and jus­ti­fy out­co­mes. We belie­ve they don’t do it on pur­po­se. This is a very con­ser­va­ti­ve field, and they were just taught to do so.

Capitalized

The­re are three good rea­sons to jus­ti­fy the com­ple­xi­ty of legal docu­ments. Howe­ver, if we look at the flip side, when cus­to­mers are con­fu­sed by this tech­ni­cal lan­guage more liti­ga­ti­on could occur. The use of lay lan­guage could pre­vent misun­derstan­dings, as all can par­ties under­stand their obli­ga­ti­ons. A clear explana­ti­on can signi­fi­cant­ly redu­ce the sus­pi­ci­ons about the coun­ter­part hiding some­thing regar­ding the deal.

To summarize: 
Just try to use a mix of lay and legal language and rethink traditional usage of legal constructions and formulations.

For­mat­ting and proofrea­ding legal docu­ments is con­si­de­red a law value task and it is often dele­ga­ted to legal assi­stants. Big law firms just must roll out law docu­ments in as litt­le time as pos­si­ble and they con­cen­tra­te on the legal aspects. Legal assi­stants recei­ve the red­li­ned ver­si­on of a docu­ment just a cou­p­le of hours befo­re the dead­line and they don’t have enough time to crea­te a cus­to­mi­zed lay­out from scratch. Most of the time, they use gene­ral tem­pla­tes. Unless you have agreed on the addi­tio­nal time spent on that (a very sel­dom situa­ti­on that I’ve expe­ri­en­ced two or three times in my ent­i­re prac­ti­ce) you will be deli­ve­r­ed a sim­ply for­mat­ted docu­ment to be trans­fer­red on your company’s let­ter­head. At that point it would be too late to sim­pli­fy anything.

You may not have the right tech­ni­cal skills to deve­lop a design but you can do a lot with basic com­pu­ter skills using Word and Power­Point and your web desi­gner will be hap­py to imple­ment your ide­as on your home­page. Just let them know in time. 

Make clear legal documentation a part of your marketing strategy

Once having the text, you can ela­bo­ra­te it and use crea­ti­ve design. Just to be on the safe side, ask your coun­cil about his/her opi­ni­on on this. 

Showing what your intent is to your legal coun­sel befo­re­hand will avoid misun­derstan­dings. If you give more input to your lawy­er, he/she will be more pre­pa­red and surely will be able to wri­te the text to your satisfaction. 

Deli­ver a gre­at expe­ri­ence to your cus­to­mers and let peop­le be wowed by your legal docu­ments!

aut­hor: Zha­na Ivanova