01 Ott 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.
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.
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!