A lamentation of the legal language used in Malaysian legal documents and the law, and a typical Malaysian client’s reaction to an attempt to use plain English in contractual documents.
When I started my career in law it was as a ‘litigator’, someone whose work revolves around the courts; as opposed to a ‘corporate/conveyancing lawyer’, someone whose work revolves around drawing up contracts, wills, etc. This basic distinction respectively follows our official one which is an advocate and solicitor. When I started out practice, I was somehow left with the impression that it was in corporate/conveyancing practice that one actually could make money. Actually, I still do because in my paltry experience I find it is not easy to earn decent fees as a litigator without a fabulous reputation. It was for this reason that I resolved to make the cross over after 10 years in practice, but to build up experience in the corporate/conveyancing area in the meantime.
It was then that I realized that I did not like the practice as I found it in Malaysia. Why? Because of the widespread use and insistence of atrocious legalese (archaic or convoluted legal terms, or what is thought to be a legal way of expressing something) in contractual documents and the general attitude of clients where this is concerned.
For an entertaining argument on why plain English should rule in the place of legalese, I cannot recommend Adam Freeman’s book ‘The Party of the First Part (The Curious World of Legalese)’ (Henry Holt & Company, 2007) enough. Copies can be found intermittently at Kinokuniya, Kuala Lumpur.
A lot of the contracts drafted in Malaysia are difficult to read, to understand and to comprehend. Many require several reads before grasping an idea of what the clause is trying to express. This is due to the legion of legalese used by lawyers in their drafts. An explanation of why this practice persists can be found at page 21 of Freeman’s book and is worth quoting:
Legal language that gets copied from document to document is known as boilerplate and is, for some inexplicable reason, always assumed to be harmless. Think about the last time that a landlord or benefits administrator asked you to sign a lengthy contract. He or she probably told you not to worry about the actual words because “it’s only boilerplate.” That sort of advice is, I need hardly tell you, sheer poppycock. Contracts are meant to do things. if the boilerplate provision actually does something, then you should cross it out, which is guaranteed to bring howls of protest from the laid-back “it’s only boilerplate” guy on the other side of the table.
Freeman then goes on to trace the history of boilerplate contracts and clauses:
The term “boilerplate” originated in the offices of nineeteenth-century American newspapers. Back then, newspapers were printed from metal plates that were cast from mats (short for matrices) made by the paper’s typesetters. Some of the savvier news agencies and syndicates would send out their press releases or columns in precase metal plates that could not be altered. Editors referred to these prepackaged plates as “boilerplate” because they resembled the standard-sized iron plates that were riveted together to make boilers. Over time, boilerplate came to mean any part of a newspaper that remained unchanged, issue after issue. At least, that’s the most often cited derivation of the word. A competing theory has it that the term was originally coined in honor of the American Press Asscoation, one of the earliest press syndicates, which in 1892 began itself in a building that also housed a sheet-iron factory. Chicago printers dubbed the APA’s offices “the boilerplate factory.”
Whatever its exact etymology, boilerplate became a journalistic cliche. At some point in the last century, lawyers borrowed the term from the field of journalism and they have yet to give it back.
Boilerplate is all around us, particularly in the kinds of documents that ordinary people deal with on a daily basis; think leases, mortgages, promissory notes, insurance policies, membership agreements, subpoenas, powers of attorney and so on. It is through boilerplate that most ordinary come to know – and hate – legalese.
What distinguishes boilerplate is its combination of archaic terminology and frenzied verbosity, as though it were written by a medieval scribe on crack. A prime example of boilerplate is the archly old-fashioned tendency to refer to the sgners of a contract as the party of the first part and the part of the second part.
But this is the irony, most clients actually prefer legalese.
Let me illustrate this from an example from my own experience which typifies this attitude. Several years ago, I was asked to prepare a simple tenancy agreement. After looking at some of the precedents available in my firm and some of those in the books, I felt that it could do with a great deal of simplification. What irked me about the precedents was that it was difficult to understand them because of the legalese, convoluted sentences, lack of punctuations and poor structuring of sentences. I had to read some of the provisions three or four times before I fully understood them. But even then I was still left with a vague sense of unease. What if I didn’t read it right? This thought was quickly followed with, Why the hell can’t they write it simpler?
With that, I decided to draft a tenancy agreement from scratch in plain English language. It took me a whole day to draft what finally amounted to about 8 pages (and even then there was a lot of spacing between). This was significantly less than our precedent which had about 14 – 15 pages. I used one word when others used at least five. Broke down sentences to make them simpler. Used a whole lot of punctuation marks. Used lists to set out conditions or alternatives. And stayed away from legalese as far as possible. On the whole, I was happy and proud of my draft. Each clause I felt was easily understood on first read. It did not require repeated readings to grasp it. I could not wait to show it to my client thinking he would be absolutely delighted now that he could finally understand the tenancy agreement.
After he read the draft, he was completely disappointed. He looked at me sadly and told me there was something wrong with the draft. I asked him what it was. He said that he could understand everything in the draft. He explained that usually he could not understand the agreements. A lawyer would have to explain it to him. So now he was worried whether the draft I prepared was effective and binding because he, as a layperson, could understand it! Mostly likely he thought I was young and didn’t know what I was doing. Despite my attempt to persuade him that it would be binding and the whole point of the agreement was that he understood it, he insisted that I used the standard drafts which he didn’t understand. When I did so, he was finally satisfied because now he didn’t understand it and he was comfortable with that.
While I thought his attitude was tragic, it was understandable. As a layperson he was so accustomed to thinking he was not meant to understand the law and his agreements that he chose ignorance because he was accustomed to it. If you stop to think about it, you will realize just how dangerous this attitude is. You are entering into an agreement which you do not understand. How then are you supposed to know your responsibilities and potential liabilities if you cannot understand it? What if there wasn’t a lawyer around to explain it to you? Worse, what if they explain it wrongly, because the legalese is so byzantine? Serious financial and personal repercussions could arise from not understanding one’s own agreements.
That is why there should be a concerted effort from our lawyers to make legal documentation easier to read and understand. There should be an initiative by the Bar Council and Attorney General’s Chambers along with other professional organizations like the Institute of Engineers of Malaysia and Malaysian Medical Council as examples to work together to make legal documents easily understandable by the layperson. Legal documents are ubiquitous. We cannot run away from it. Whether it is buying your house, your car, using a service or just about anything and everything requires a legal basis. More importantly, Ignorance of the law is no excuse. This is clear both in criminal and civil law.
We choose not to understand our legal documents and law at our own risk.
In concluding, I would like to recommend an excellent book that if taken to heart would go a long way to improving the quality of writing in law. It is Richard C. Wydick’s Plain English for Lawyers (Carolina Academic Press, 5th Edition, 2005). This is not the be all and end all on techniques on this area, but it is a very good start if even some of the lessons there are applied to our daily work.