Plain English - How

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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 crutches (“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.
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

• In terms of the time, delay and aggravation of getting it into the document.
• In terms of the complexity of your documentation with that client.
• In terms of the variability of your documentation across your portfolio.

Escalation has a cost

• Many times will you hear a saintly credit officer insist on starting out with a term the credit officer doesn’t really need because there’s no harm in asking. But there is a harm in asking: the time, effort, ennui, delay and client aggravation in going through the escalation process. Don't under-estimate these. It might be hard to quantify it, but there is a dollar value in every lost moment in which you could be doing something more productive, your negotiation counterpart could, and your traders definitely could - namely trading with the counterparty rather than fielding calls from them about where their goddamn isda is, and then hassling you about it.

Organise your writing.

Spend time structuring your writing.

• Put the important points first.
• Use nested paragraphs
  • They help organise your thoughts.
  • The clearer your structure, the easier it is to follow.

Edit your writing.

It is hard to write clearly. You have to work at it. Editing is harder work than writing. It takes three times as long. So write two thirds fewer sentences. But make them good ones. Take pride in your work. Be elegant.

Be self-critical.

We are lawyers: elegant writing doesn't come naturally to us. We had it trained out of us. The cultural weight of our education, training and professional development conditioned us to write in a certain way. To stop writing that way, we must be very self-critical.

Keep it positive

• Prefer positives to negatives.
• Avoid double negatives.
• Recoil in horror from triple negatives.

Sexist language

You are writing for men and women. If you write “he” all the time you risk irritating half your audience. Writing “she” all the time risks irritating the other half. Writing “s/he”, “he or she” or “it” risks irritating all of them. There are things you can do:

• Write in the plural: Instead of “I am yet to meet a client who tells his lawyer to avoid write incomprehensibly” say “Clients don’t tell their lawyers to write incomprehensibly”.
• Write in the first and second person: I’ve never had a client ask me to write incomprehensibly”.
• Do both: write in the first person plural: this is the beauty of “we” and “you” — both are beautifully gender neutral
• If you can’t do any of the above, alternate. I try to do this on this wiki, but being a fellow, but when in doubt, which is most of the time, I err in favour of “she” because I find that makes me think a bit harder about what I’m writing. The challenge with doing that, of course, when writing satire, is that it looks like some kind of political statement. For whatever it is worth, it isn’t.

Enumerations

• Break into subparagraphs:
• Branch right, not left:

Kill these first

• Notwithstanding the foregoing
• For the avoidance of doubt
• Including, without limitation
• one or more
• The Counterparty may, but shall not be obligated to

Don’t use fusty expressions

• Shall isd a bad, ambiguous word, and it makes you sound like a jerk. Use must, for an imperative, or will, for a declarative.
• And/or is always just “or”.

Style

• Use strong verbs, instead of modified weaker ones. In other words, avoid adverbs.

• Prefer "bellowed" to "Shouted loudly".
• Avoid nominalisation: "notify" instead of "give notice"

• Use strong forms of verbs: "He shot" over "he was shooting"
• Avoid wimpy writing: Avoid "almost", "seems to".
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