The Return of the ''Contract Clause from Hell''
The following column is written in response to the Opinion and Dissent on page 150.
Thanks for your letter. I’m glad you read the Plain Language column. Many colleagues tell me that it’s their favorite part of the Bar Journal. Sorry for any inaccuracies in ‘‘translating’’ the ‘‘Contract Clause from Hell.’’ That’s the problem with legalese—it’s so hard to read that it’s bound to be misinterpreted.
Legalese—The Beast That Never Dies
Like the villain in a scary movie, contract clauses from hell refuse to die and stay dead! They’re copied from document to document by law clerks and senior partners alike, each afraid to confront the monster for fear of making a ‘‘substantive error’’ in ‘‘translation.’’ The only hope for saving humanity (okay—I exaggerate) is for some brave lawyer to pick up the silver stake of plain English and drive it through the heart of the fiendish beast, killing it once and for all.
Legalese Needs to Be Translated
I agree with the characterization of my rewriting exercise as a ‘‘translation.’’ Like a foreign language, legalese is incomprehensible to most people. Even lawyers must study it word for word to understand it. Legalese wastes time and money while people try to discern—and then proceed to argue about—what it was supposed to have meant. And all the while, some poor client is paying the cost of the argument.
Your letter indicates that some points were lost in translating the ‘‘Clause from Hell’’ into English. But I say that, in the original ‘‘Clause from Hell,’’ the main point is lost, and only a patient few will ever find it. And consider that the ‘‘Clause from Hell’’ was just one paragraph out of a 20-page commercial contract! If every contract clause were written like this, our whole economy would stop.
Revised Translation of the ‘‘Clause from Hell’’
Of course, the purpose of my article was not to capture the exact meaning of the ‘‘Clause from Hell’’ in plain English, but to discuss the problems typical of wordy clauses, and how to fix them. I’m providing a new translation, which is written in normal, college-level English. I hope it addresses your comments and shows that anything that needs to be said can be said in plain English. (See chart.)
Response to Specific Points
Now, let me try to answer the points raised in your letter as best I can, taking them in reverse order:
In translating the ‘‘Clause from Hell,’’ I deleted the phrase after Roman numeral (ii), because it was redundant. If one party gives an indemnity conditioned on its right to defend and the other party violates the condition by settling the case, it’s obvious the indemnity doesn’t apply. I don’t view that as a substantive change.
I also added the statement in b(2)B—‘‘The indemnified party...has no liability for a...settlement effected without its consent’’—to balance the unfortunate implication of b(2)A that the indemnified party might be required to consent to a settlement involving less than full indemnification. Apparently, this change caused more confusion than it solved, so I removed it in the revised translation. Either way, I don’t view this as a substantive change.
[Note that the original ‘‘Clause from Hell’’ contains parallel language requiring each party to not unreasonably withhold its consent to a proposed settlement. But this parallelism is deceptive, since each party’s situation concerning what is ‘‘reasonable’’ consent is inherently different. A ‘‘reasonable’’ settlement for an indemnifying party—who must, in general, pay all the bills—is not the same as a ‘‘reasonable’’ settlement for the indemnified party, who, in general, gets off the hook. (After all, that’s the purpose of an indemnity.) This asymmetry in position was obscured in the wordiness of the ‘‘Clause from Hell,’’ but became glaringly obvious in plain English.]
The original translation could have been clearer that the indemnifying party’s responsibility to pay the indemnified party’s legal fees stops when the indemnifying party assumes the defense. (Thanks to legalese, I missed this issue entirely in reading the original.) But this oversight makes no practical difference if, as you say, the indemnifying party will always assume the defense right away. The revised translation clarifies this point.
Retaining Counsel Satisfactory to the Indemnified Party
The point that the indemnifying party’s counsel must be satisfactory to the indemnified party is clear from context, but I agree that must is better than may. Note that, if read literally, the original ‘‘Clause from Hell’’ also required the indemnifying party to retain counsel satisfactory to the indemnified party only ‘‘to the extent it [the indemnifying party] shall wish.’’ The revised translation clarifies this point, and also adds a standard of reasonableness.
Is the Original ‘‘Clause from Hell’’ Substantively Better?
All in all, I disagree that the original ‘‘Clause from Hell’’ was substantively better or that it ‘‘got the legal relations right.’’ What actually happened to it was that the clients rejected not just this paragraph, but the entire contract draft. The final contract—prepared using a different form—contained a single indemnity, but made no mention of indemnification procedures.
Given this result, one might question whether the ‘‘Clause from Hell’’ got the legal relations right, or whether anything it contained was truly important. Consider, on the other hand, that if the parties had had a plain-English version of the clause, they might have dealt with indemnification procedures in the contract, and the contract might have been better for it.
Do the Benefits of Plain English Outweigh the Risk of ‘‘Translation Error’’?
The old saying goes, ‘‘If it ain’t broke—don’t fix it.’’ In fact, it seems that every time someone tries to rewrite a bit of legalese to make it more understandable, someone else complains—sometimes rightly, sometimes wrongly—that the ‘‘translation’’ is inaccurate, and that some important detail or refinement is lost.
But are the benefits of plain English sufficient to overcome the risk of making a mistake in translation? I think they are. Plain English is better than legalese because it’s easier to read, it contains a third less words, and can be read in half the time. This saves lawyers, judges, clients—just about everybody—time, money, and filing space. But the biggest benefit of revising documents in plain English is that the effort almost always results in improving the document’s substantive content.
The Benefits of Cleaning House
Whenever I clean up clutter around my house or garage, I find that, for every 20 things I discard, I’ll later regret having thrown one of those items away. But I also find three useful things I had lost. So I figure it’s a net gain of two, plus I get the benefit of an uncluttered house or garage.
The same principle applies to eliminating clutter in a legal document. You may accidentally throw out a point now and then, but the process of revising usually improves the substance. Let’s look at just a few items hidden in the clutter of the ‘‘Clause from Hell’’ that were improved in plain English.
In addition, your letter indicated that the ‘‘Clause from Hell’’ might not be appropriate if the indemnifying party was not collectible. A busy lawyer might miss this issue if their time and attention were consumed by trying to figure out what the ‘‘Clause from Hell’’ was supposed to mean. The plain-English version leaves the lawyer more time to think about issues like this.
Summary—Kill the Beast!
Thanks again for your letter and for your interest in plain English. With the help of your comments, the revised translation of the ‘‘Clause from Hell’’ contains improved substantive content, but is written in normal college-level English, with less than half the number of words.
So go ahead—Kill the Beast! Next time you see a clause written in hellish legalese, be a hero and rewrite it. Putting documents in plain English is a good bet, since the benefits of writing in plain English—including both ease of reading and the probability of substantive improvement—almost always outweigh the risk of making a mistake in translating.