Style Makes the … Contract?

Why do lawyers write so badly? Save and except, without limiting the generality of the foregoing, writers and their heirs, successors, and assigns whose right, title, and interest in and to the aforesaid subject matter is or may be, with the giving of notice or the lapse of time, … Sorry, that sentence got away from me!

The push towards plain language drafting is, of course, nothing new. Joseph Kimble, Emeritus professor at WMU–Cooley Law School, has been writing on the topic for more than 30 years. He has written two books, including Lifting the Fog of Legalese and among the papers he has authored are Answering the Critics of Plain Language, Plain Words (Part 1), and Plain Words (Part 2). The arguments he makes in his “Answering the Critics” article are quite persuasive, … but sadly are probably only read by those who are already converts to the cause.

More recently, Professor Ken Adams, Adjunct professor at Notre Dame Law School, through his blog, Adams on Contract Drafting, his book, A Manual of Style for Contract Drafting (currently in its 3^rd edition), and his many seminars, has been doing what he can to advance the cause of what he prefers to call drafting in “standard English” (rather than “plain language” drafting). Bryan Garner is another American legal writer on the topic, whose work includes a book entitled Legal Writing in Plain English.

My knowledge management colleague Ted Tjaden has published a list of useful resources entitled Legal Research and Writing, which includes a number of Canadian references, although it would seem that his list has not been updated for a while. And the Canadian Bar Association published a Resolution on Plain Language Documentation but, alas, it dates from 1991.

There are, therefore, ample resources to help practitioners to improve their style. And yet, if you review at random the agreements published on Edgar, many or most of which are drafted by the country’s top law firms, you would wonder if the drafters had ever heard of, let along considered, the issue.

One way to help encourage lawyers down this path is to adopt a firm or department style guide, with instructions on what the “house style” is on a number of key issues. Of course, any such style guide cannot cover all possible issues, and users will need to consult a text such as Professor Adams’s book for in-depth discussions and analyses. But simply adopting a style guide, in and of itself, is a good first step.

It is hard to know how many law departments and law firms have taken that step. In August 2013, the Office of Legislative Counsel in BC published its Principles of Legislative Drafting, which might be of help to legislative counsel in other jurisdictions, but doesn’t really help the country’s solicitors in drafting transactional agreements.

When I was with Cassels Brock & Blackwell, I was the prime driver in the creation of the firm’s style guide. The style guide, first created in 2011, was not just distributed internally but also, at my suggestion, published on the firm’s website. If you’re interested, you can find the current version here.

I was not aware of any other published style guide until, in mid-July, Robert Ambrogi, in a post entitled Striking a Blow Against Legalese: Adobe’s Legal Department Open Sources Its Plain-English Style Guide, flagged to the wider community the publication of the Adobe Legal Department Style Guide. The Adobe guide is, not surprisingly, published as an Adobe PDF document, available via SlideShare.

Here’s the blog post from Adobe’s SVP and General Counsel, Mike Dillon, entitled Taking Legal out of Legalese, which explains the background.

The Adobe guide has a nice, clean table of contents, in a tree format, with the general divisions noted on the left, the subdivisions in the middle, and the specific contents on the right. It gives the reader a good visual overview of the contents, much better than a standard book ToC.

Adobe has also chosen to highlight the different segments of the guide by different background colours. This is a very effective way to signal to users whether a particular segment is part of the previous section or part of the next one.

The guide starts with a one-page overview briefly identifying When to use the guide, Why, and What the guide requires the user to do. That is followed by another single page that states the five guiding principles, with a few bullets under each (except for the last, Edit and Proofread Your Writing, which is self-explanatory). This format enables Adobe to communicate important concepts in an appealing way and in a location that many users would ordinarily skip over. (“I don’t care about their philosophy! I just need an answer to my question.”)

We then plunge into the “meat” of the guide, where statements of principle are usually followed by one or more examples. On a number of pages, the guide is broken down into three columns to ease understanding. Down the right-hand side of each page you will find pithy comments, including quotes from Camus and C.S. Lewis, related to the text on the same page. The large number of examples will be extremely helpful to users.

The publication prompted several online comments, including

• Adobe opens legal style guide and encourages clear writing, from Rob Till, VP and Assistant General Counsel for Red Hat (an open source software company)
• Adobe GC Preaches Gospel of Good Writing, by David Ruiz of The Recorder
• Some Thoughts on the Adobe Legal Department Style Guide, by Ken Adams

The guide has many good comments and suggestions and would be of benefit to most law firm lawyers as well as in-house counsel.

There are a couple of design and other choices made that I find curious. First, they have opted for fully-justified (block) text formatting. This leads to text that is often not reader-friendly. For example, the sentence, “Use a capital letter when a defined term is being used,” appears on two lines. The first nine words appear on the first line, with the last two on the second line, each on opposite sides with a large blank space in the middle. Professional typesetters can properly set type to alleviate these issues, but word processing software is unable to do so. Since there are many readability studies that show that fully-justified text is much harder to read than left-justified (or ragged right) text, this choice was peculiar, particularly in a guide that focuses on making texts easier to read.

Second, Adobe continues to use “e.g.” and “i.e.” Many laypeople and even some lawyers confuse the meaning of these terms, so it’s surprising that they would not avoid that potential confusion. As a general principle, it is best to avoid Latinisms, particularly in a document that exhorts its users to avoid legalese. The guide could easily have distinguished its examples simply by using a different colour and perhaps typeface, for example, rather than introducing each one by “e.g.”

Third, I cannot avoid mentioning a particular bugbear of mine, namely the use of the word “font” to mean either typeface or point size or both. “Font” refers to presentation styles such as bold or italics. The typeface is what you choose to present your text in (such as Helvetica, Times New Roman, etc.). Point size indicates the relative size of your text. While 12 point text used to be the norm, it is more common now to see text in 11 point size. It would have been easy for Adobe to clarify the issue and use the proper terms. It’s a nice goal to have lawyers use precise terms with their exact meanings!

They have made style choices made that I do not necessarily agree with, such as for example stating that a colon follows introductory words. Although lawyers very commonly adopt this practice, in the “Fortune 500 world,” a colon is used only in narrowly defined circumstances.

If lawyers submitted their text to copyediting from professionals outside the legal world, they would find that most of their colons had disappeared. However, Adobe has chosen to stay with the “usual” legal style for colons. There are other examples but these instances reflect their choice; I might argue with some of those choices but the purpose of a style guide is to say, “This is our usage. Let’s all do it this way.”

I hope that the Adobe initiative prompts other law departments and law firms to develop – and publish! – their own style guides. It’s interesting to note that Adobe published this under an open source licence to encourage others to use it as basis for their own efforts.

It is to be expected that an organization’s style guide will reflect its own culture. For example, I anticipate that it will be a long, slow battle to get law firms to finally ditch fully justified text in favour of left-justified (“ragged right”) text, despite countless readability studies that show that fully-justified text that is not professionally typeset (in other words, that is generated by word processing software) is much more difficult to read than left-justified text. But I am hopeful that at some distant date, the last lawyer will finally yield on that point!

Before ending, I would like to add that I was involved in the preparation of the Contract Standards Style Guide, which was published in August 2015. This guide was prepared as a web guide, for use by web users. Accordingly, among other things, it has hyperlinks allowing users to toggle between various segments of the guide. Like the Adobe guide, it is also available to any user who wishes to make use of it for their own purposes.

Perhaps the publication of the Adobe guide might be the beginning of a shift in the emphasis on plain language drafting. Now, if we could only get lawyers to start using the serial comma!