Hate learning contracts? MIT research explains the real reason legal documents are so hard to understand

Legalese has frustrated and intimidated anyone without a law degree since time immemorial. Marked by the cosmic gumbo of archaic language, mind-numbing repetition, and dense blocks of clauses interspersed between sentences, it’s a style of writing that can be seen almost anywhere except in fine print. But why is the language in legal documents so indigestible that many of us never fully read our contracts? New research from a team of cognitive scientists at MIT suggests that the confusing nature of legalese may serve a clear purpose.

The first thing you should know about legalese is that legal professionals are often not fans of it. Indeed, it was only after the lead author of the MIT study, Eric Martinez, earned a law degree at Harvard, spending years poring over court filings, statutes, actions and decisions, that he thought about focusing on law as a subject. As of 2020, he has been researching this confusing writing style with Edward Gibson, an MIT professor specializing in brain and cognitive science. In their latest study on why legal documents are often unedited, the team tested whether non-lawyers would end up using legalese when asked to write legal documents.

The experiment examined two theories: a) the “copy and edit” theory, which states that legal documents start simply enough, until the blinding details need to insert long explanations between sentences, creating what is called “embedded in the middle”. clauses,” and b) the concept of “magic spells,” which suggests that, like the rhyming Latin and pidgin found in magic spells, people use legalese to spread the “legal validity” of a legal document.

The researchers recruited 200 people with no legal background to write laws to prevent certain crimes, and then write stories about those laws. To further test the “copy and edit” hypothesis, half of those subjects were given additional context after writing their first rules to test whether that would result in more complex, centered clauses. At the end, everything the subjects wrote their rules in complex, central clauses—which were not present in their later essays. Scholars have concluded that convoluted legalese often serves as a means of conveying authority.

Even lawyers hate law enforcement

Lead author Martinez is not the only legal professional turned off by this style of writing.

“Whenever requests start with ‘coming now,’ I expect the trumpets to announce whatever comes next,” said Jacqueline Schafer, a former assistant attorney general in Alaska and Washington state, and founder of Clearbrief, a company that uses AI to make legal writing more efficient. . effectively.

“The last time people talked like this was the first Thanksgiving,” said Vineet Dubey, founder and partner of Custodio & Dubey, the law firm representing the LA Kings.

There is good reason to believe that at least part of the reason this style of writing still appears in legal documents is to convey authority. After all, what could sound more legally binding than a contract that is impossible to define? Even some lawyers are willing to admit that.

“What most people associate with the word ‘legalese’ is the belief that in order to be effective, the legal language has to be complex, containing words like ‘thereto’ and all this nonsense,” said Natela Shenon, a partner at Grant Shenon in Los. Angeles. “That’s not true, and it’s often overblown. Lawyers sometimes go overboard because they feel they need to prove they are worth their non-billable hours. They may believe that if the contract is not complex enough, it somehow undermines their ability, or does not give the customer value for money.”

Some may even use legal weapons.

“There is no doubt that we live in a world where we have all had to deal with legal documents that are designed to interfere on purpose,” said Dubey. “When it comes to user agreements or terms of use, where the company’s interests are at heart, then a wall of words may serve the purpose of avoiding or intimidating customers who may be unhappy, hurt, or offended by a product or service. . We just saw Disney trying to push this to a new level. “

But very few lawyers would admit that they use hard law to sound authoritative, according to these experts. So, why do do they all write like that?

Everything is written down

One obvious reason is that legal documents cover complex concepts. When a concept is complex, lawyers must be clear and detailed in their writing to capture all the nuances of that complexity and support it with the right words—not to mention the right prefaces and citations. The gold standard in court filings, according to Schaefer, is that each sentence has a citation, relevant to the facts of the case or the law it issues.

The clear need for all those citations, which can make a visual impression of entering the pure hell of a legal document, helps to support the idea of ​​”copy and edit”.

“It’s a necessary evil, when you write something in court,” Schaefer said. “Some lawyers just start talking about their case when they write a brief, but they have to go back and find the facts quoted. all one truth let them speak.”

As for the language that seems to be intended to make an authority, perhaps the reason it sounds old-fashioned is because the law is a static profession. Some words have not been touched since the English Common Law was established hundreds of years ago. At the micro level, lawyers often follow the example of their firm; to a large extent, they tend to adhere to broad legal principles that have remained true for decades and sometimes even centuries.

“The whole basis of our legal system is this idea of ​​precedent, where we incorporate statements from older court opinions,” Schaefer said. “When most lawyers sit down to write, we often work without precedent, so we see a lot of the same words and phrases repeated and re-inserted across generations of legal writing.”

Legal texts are complex, seem like precedent, and require precise language that often feels archaic and vaguely different from Latin. While the rigor of legalese may sound annoyingly touchy or downright dull, it can be a testament to the legal profession sticking to the script. The client’s eyes glaze over, but the job gets done.

Will legal texts ever read as closely as ordinary people write stories, not laws? Probably not, unless enough local courts revise their charter requirements. Or unless others force majeure an event, including but not limited to acts of God, riots, war, fire, floods, accidents, strikes—you get the idea—sets all formal written representations back to zero.