By Electra Japonas.
The trouble with lawyers
See, lawyers are special. The language they use is very special. And by special, we unfortunately mean painful. We have been (expensively) trained for years to speak in a “code”, or “legalese” as it’s often called.
“Legalese” is reserved for lawyers and the complicated, technical nature of it means that those outside of the profession are left confused by the jargon.
And considering that the stuff written in legal documents is mostly meant for other people, and rarely the lawyers themselves, this seems counter-productive.
But legal language doesn’t need to be complicated. It can be serious and should be legally binding, but it must also be simple. A court won’t look at a contract that has the word “notwithstanding” in it and interpret it more favourably than if it said ˜in spite of”.
A real-life example
In 2010, US lawyer Sean Flammer asked 800 circuit court judges to choose which argument was best framed. One was a traditional “legalese” argument, the other was in what he called “plain English”.
The judges overwhelmingly preferred the plain English version (66% to 34%), and that preference held no matter their age or background. The respondents also said that they thought the plain English author was more believable, better educated and worked for a prestigious law firm.
In conclusion, plain English makes you more popular, more believable and also makes you sound clever too.
Adopting a user-focused approach
There’s no point in writing a contract or drafting legal advice which can’t be understood by your clients. Put yourself in your reader’s shoes when you’re writing or advising.
Here’s an example of how you might structure advice. Firstly, start by defining the questions your client really wants to know. The structure might be:
Can I do what I want to do?
Will I get in trouble because of it?
How much will it cost?
How did you reach this conclusion?
If you were to read it out loud, does it sound like the kind of thing you’d actually say?
Say for example John from HR asks you whether he can dismiss Susan, who has been employed for four months and has been a less than model employee for that time.
(By the way, this is not legal advice, this is an attempt to illustrate how you might go about advising your internal stakeholders).
Here’s what you need to know
Can we dismiss Susan? Yes, we can.
What’s the risk of Susan suing us? Susan may well decide to bring a claim against us. But I think the chances of her winning any such claim are low.
Do we need to pay them a settlement? We don’t need to do this under the agreement or by law. However, there are some benefits if we choose to do this.
How we got there
The contractual position. Under our agreement with Susan, we can end her employment under Clause 3 which says that we can do that if the employee acts in a way that is not in line with the interests of our business. We think that Susan’s conduct is a valid reason for dismissal.
The legal position. From a legal point of view, under s.98(2)(b) Employment Rights Act 1996, an employer may end an employee’s employment for misconduct. This may be a single serious act or a series of less serious acts. I think we can rely on the latter here.
Under English law, an employee can’t bring a claim for unfair dismissal against their employer unless they’ve been employed for over two years OR if the employer has acted in a way that qualifies the dismissal as automatically “unfair”.
We don’t think that Susan can claim that we’re dismissing her for any reason that is unfair so if Susan decides to sue us, it’s unlikely that she’ll be successful. (That doesn’t mean she won’t, it just means that she probably won’t win.)
Joking. We mean “Conclusion”.
Final words of wisdom: if you always put your user first, tell them what they need to know and deliver your advice in the most digestible format possible, you really can’t go wrong!
About the Author
Electra Japonas is the founder of The Law
Boutique, the world’s first Legal Optimisation Company. Electra founded the business after spending 10 years in large corporates and becoming frustrated with the way legal services were delivered.
The Law Boutique is on a mission to transform in-house Legal into a commercial advantage, through the implementation of user-centric process design, smart tech and bespoke tools. Through its four pillared approach: Define, Design, Delegate and Automate, The Law Boutique helps Legal and Compliance teams align their trajectory with that of the business, make themselves scalable and fuel business growth.