Contracts: Do lawyers know their writing is bad?
A research paper that says contracts are hard for people to understand because of their poor writing, rather than use of legal terms, has been awarded the Ig Nobel prize for literature.
The prestigious-yet-tongue-in-cheek awards are made for improbable research projects that at first glance appear ridiculous – blatantly obvious or absurdly obscure − but in fact conceal a genuine thought-provoking purpose.
The sought-after awards, which receive some 9,000 nominations each year, are presented by actual Nobel Prize winners.
The three authors of the contracts paper – specialists in language and cognition, although one was also a lawyer – were cited for analysing what makes legal documents “unnecessarily difficult to understand”.
They found: “Contracts, such as online terms of service agreements, are at once ubiquitous and impenetrable, read by virtually everyone yet understood by seemingly no one, except lawyers.”
In particular, they highlighted the difficulty of understanding longer sentences with subclauses in the middle, which they put down largely to the problem of working memory.
These “centre-embedded” clauses were a feature of contracts that might be largely eliminated by “un-embedding this clausal material into a separate sentence”.
A comparative analysis of contracts and standard English texts found that “each of the complex psycholinguistic properties reportedly common in contracts – such as centre-embedding, low-frequency jargon, passive voice and non-standard capitalisation – were strikingly more common in contracts relative to every genre of standard English that we compared it with, and that contracts containing these features were recalled and comprehended at a lower rate than contracts drafted without these features, independent of reading experience.”
The researchers then had a group of 108 people read and answer questions on short contract excerpts that were either in their original form or rewritten so as to replace low-frequency words with high-frequency synonyms, ‘unembed’ centre-embedded and re-draft them as separate sentences, convert passive-voice structures into active voice, and remove capitalisations.
These tests showed that excerpts in their original form were “more difficult to both comprehend and recall” than the rewritten contracts.
The results suggested that “insofar as low-frequency legal terminology presents processing difficulty for laypeople, this often results not from unfamiliarity with the concept underlying that terminology but with the terminology itself”.
The researchers gave as examples the phrases ab initio and ex post facto, which in many cases respectively could be simplified to “from the start” and “after the fact”.
Given that those with less reading experience as a group tend to be of lower socioeconomic status and such people face greater disenfranchisement from the legal system, “this suggests that simplifying contracts may have non-trivial access to justice implications”.
The paper went on: “At the same time, the fact that those with higher reading experience also struggled to comprehend and understand contracts written in legalese suggests that redrafting texts into a simpler register would have beneficial effects for those of all reading levels.”
The researchers cast doubt on the notion that legal language was used to maintain “communicative precision”.
They concluded: “While it seems entirely plausible that certain legal jargon is inevitable, our results suggest that in many instances such jargon can be replaced with simpler alternatives that increase recall and comprehension while preserving meaning.”
The authors headed off possible criticism by lawyers that a lack of comprehension by readers was due to the absence of expert legal training, rather than anything else. Analysis found that lawyer-written texts tended to include an excess of phrases with properties likely to inhibit mental processing by readers.
It was also possible, they added, that lawyers might simply not realise that their language was too complicated for the average reader to understand.
All three authors – Eric Martinez and Edward Gibson of MIT in the US and Frank Molica of Edinburgh University – attended the Ig Nobel awards at Harvard University in person.
Other winners this year included Japanese research into the most efficient way for people to use their fingers when turning a knob winning the engineering prize, and the art history award going to a study on ritual enema scenes on ancient Maya pottery.
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