Unpacking Legalese: The Challenge of Understanding Legal Texts

In a previous blog post, I discussed the pitfalls of poor corporate communication. Today I want to discuss the formal, technical language of legal documents commonly known as legalese.

It is not a revelation that legal English can sometimes be hard to follow. Contracts and regulations are inherently dry, technical, repetitive and formulaic. They often use the passive voice, technical terms, archaic expressions, and a liberal sprinkling of Latin — not everyone’s cup of tea.

However, a study by MIT researchers Eric Martínez, Francis Mollica, and Edward Gibson shows that it is not primarily these characteristics that make legalese difficult to grasp; the redundant nature of legal texts make them tedious, but it doesn’t make them difficult to understand. Likewise, readers find the passive voice grating, but it has no bearing on comprehension. The use of so-called “low-frequency words” (obscure, technical terms) is obviously a barrier to comprehension, but not to subject experts. According to the authors, the main factor that harms comprehension in legal texts is the over-use of nested clauses or “centre embedding,” which the researchers say is 168% higher in contracts than in standard English.

Centre embedding is a grammatical construction where one or more clauses are inserted into the middle of a sentence, disrupting its flow, making it more complex and difficult to understand. This creates a sentence structure where clauses are layered within one another, creating confusion as to whether verbs, objects and pronouns refer to the subject in the main clause or the subordinate clause. Take the following example:

"The Supplier, who the Buyer required immediate delivery from due to urgent operational needs, contacted following a thorough market analysis, agrees to provide the Goods, which are specified in Appendix A, within ten business days from the date of this Agreement."

The main clause is highlighted in yellow, the first embedded clause is highlighted in blue, the second embedded clause is highlighted in purple, and the third embedded clause is highlighted in green.

Presented like this, it is easy to see why centre embedding makes writing hard to parse: the primary subject (the Supplier) is separated from its verb (agrees). Due to the presence of a secondary subject (the Buyer) and additional information (contacted…) in between, the reader has to remember the first subject while absorbing multiple pieces of information in the embedded details. It is essentially a problem of working memory.    

Our example sentence is not particularly technical, so it would be easy to make it clearer simply by splitting it into two or three separate sentences that reduce the distance between connected words. The research by Martínez et al. is interesting because it shows why legalese is hard to understand, but another paper by the same researchers shows that even lawyers prefer plain language. According to this paper, “lawyers rated simplified contracts as equally enforceable as legalese contracts, and rated simplified contracts as preferable to legalese contracts on several dimensions — including overall quality, appropriateness of style, and likelihood of being signed by a client” — so what explains the prevalence of this style of writing?

It is easy to imagine that legalese is a cynical ploy by lawyers to ensure their services continue to be needed, but Martínez et al. suggest that lawyers adopt this style more out of habit (because this is what they are used to) and convenience (because they can copy and paste from past contracts) than preference.

Legalese is also in part a way for lawyers to signal to the reader that they are a credible interlocutor and that the subject is important. Even if everyone can see the benefit of simplifying contracts, there is be no incentive for individual lawyers to deviate from established norms until a critical mass of lawyers, academics, bar associations, and advocacy groups are calling for it.

The authors posit that it would be both feasible and desirable to establish different norms for legal writing. This is not a new idea; Richard Nixon’s 1970 Plain Language Act and Barack Obama’s Plain Writing Act of 2010 both sought to ensure that federal regulations were easier for laypeople to read – to little effect so far.

Although it is not possible to entirely simplify legal texts without compromising on precision, as the authors of the study conclude, “in many cases, lawyers can and should adopt a simpler register in order to achieve a level of formality that best aligns with their communicative aims as opposed to burdening clients and themselves with obfuscatory legalese.”