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Plain English - How: Difference between revisions
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== | ===On recrafting legal agreements for the 21st century=== | ||
'''Plain English''': The easiest and most obvious is plain English. This is things like | |||
*Structuring into short, navigable, hierarchical structured paras to reveal the “logic” of the obligations | |||
*Putting things in [[active tense]] and with active verbs (“notify” instead of “give notification of”) , avoid negative constructions– it is surprising how much space this saves | |||
*Removing over-description; describing in general, not specific terms (removing “[[including, without limitation]]…” and similar; removing “we shall not be obliged to …” where the thing in question was not a positive obligation in the first place; | |||
*Removing [[legal crutch]]es (“[[shall]]”, “[[deemed]]”, “[[and/or]]”, “[[for the avoidance of doubt]]”, “without limitation”, “in whole or in part” “for the purpose of”, etc.) | |||
'''Reorganise the content''': The paragraph structuring process done above usually reveals convoluted logic that can then be reorganised in a more intuitive way. | |||
*Organise with a view to intuitive reading, for those with a short attention span, | |||
*Key points at the front, less important/operational parts at the back. | |||
'''[[Duplication/Redundancy]]''': reorganising the content, in turn, often reveals a good deal of duplication and redundancy, which then can be removed.<br> | |||
'''Separate out [[boilerplate]]''': Separating key terms from [[boilerplate]]: Separating boilerplate from key economic terms literally — putting them in separate documents so you can lock down the boilerplate and leave the key terms editable – makes a big difference. There are a number of advantages tp putting key economic terms, amendment to boilerplate terms, and any variables and elections in a separate document: | |||
*The key terms are now set out in a summary termsheet document that clients and operations teams can read without legal assistance | |||
*The boilerplate terms are totally standardised and we have total confidence they have not been changed (except where set out specifically in the termsheet) | |||
*The termsheet structure discourages wordsmithing the boilerplate: it is easy to insert “or any part thereof” inline into a clause. Writing it as an amendment in a separate document looks pernickety and opposing lawyers tend not to do it at all | |||
*It makes updating the standard forms, and repapering, easier and less aggressive. You can demonstrate to all your clients how the new version is changed, and they have the option to move to it by re-executing against the new published version number. Very handy for regulatory changes. | |||
'''Mark [[boilerplate]] to market''': take a good look at where, typically, you ''end up'' in negotiations on your current docs, and just commit to moving to that point as your starting - and ending point. Therefore leave no room for negotiation. This ''looks'' like a notional “weakening” of your bargaining position, but only to a point we know our risk team will in any way accept. It achieves a number of things: | |||
*It makes the [[boilerplate]] reasonable, and hard to argue with, and therefore there is less negotiation | |||
*It reduces variability in your document portfolio. You know everone has the basic terms — unless it says otherwise in the elections document. You don’t need to spend time checking to see what boilerplate terms have been modified how | |||
*You can draw credible, firm negotiating lines quickly. Opposing firms quickly become accustomed that you don’t negotiate boilerplate, and they don’t try. | |||
'''[[Persuasion]]''': Craft the documents and the language in them to be ''persuasive'' and, where there is a choice, ''agreeable''. For example: | |||
*Take care with layout, formatting font, margins and line spacing to make the document easy to read. (this is one more reason to have short paragraphs) | |||
*Personalise the document: have it reflect the interpersonal relationship between the parties: “we do not have to” and “you must” rather than “Service Provider shall not be obligated to” and “Client shall at all time...” | |||
*Avoid red rags: use words like “reimburse” rather than “indemnify” | |||
*Insert conduct standards on UBS (and the client): always act commercially reasonably and in good faith | |||
====Every legal protection has a cost==== | ====Every legal protection has a cost==== | ||
*In terms of the time, delay and aggravation of getting it into the document. | *In terms of the time, delay and aggravation of getting it into the document. | ||