Now you are convinced of the benefits of readable contracts [read more], this post describes a process for writing those contracts with ideas from ‘The Art of Readable Writing’ (1949) by Rudolph Flesch.
Effective Writing
It is common ground that the [contract] in this case would win no drafting prizes for precision or clarity. It included errors (the repeated use of the word ‘tenant’ instead of the word ‘guarantors’) which are acknowledged by both sides, and it also struggled to convey the essential agreement reached between the parties – Perriam v Wayne [2011]
My WRITE process helps you organise your contract writing so you can avoid winning the wrong sort of prizes for your writing!
Who/Why
As Flesch says ‘study your audience and then write in the form that is most likely to appeal to them‘ [p19] If less than 1% of people read online T&C what can you do to make sure they read yours? You also need to convey the essential agreement, the why of the contract.
Tip 1: write to encourage and entice the parties to read your contract.
Tip 2: focus on getting your contract’s purpose across, your ‘why’.
Research
Flesch cites Schopenhauer who claimed that ‘the first rule for good style is having something to say’. Writing without research is vanity – your contract ought to be relevant. Is it legal, enforceable, up-to-date and does it change behaviour? It shouldn’t recite the obvious or tell judges what to think (which they don’t like).
Tip 3: make every word count – it must have a real measurable impact on the parties.
Index
Before you start to put a single finger to a keyboard or ink a word onto paper, you need a period (or two) of reflection (read more). Flesch says ‘Every professional writer knows that [a] period of just-sitting-and-thinking between legwork and outline is the most important part of the whole writing process.‘ [pp27-28] Your structure is critical for readable writing – for contracts that means collating the obligations of each party into one paragraph, and putting the project specific information into a cover sheet or key facts table. You could use Verity White’s reverse contract sandwich.
Tip 4: make it easy for the parties to find what they need.
Text
Flesch urges writers to ‘say what you have to say, and then stop.’ [p48]
How tempting is it to copy and paste clauses from boilerplate terms, previous contracts or the web to bulk out your content? And when I challenge those ‘standard small print’ terms many writers do not know how ineffective they can be when challenged in court.
Tip 5: include enough for a robust legal contract but no more.
Edit
Flesch says that ‘Remember that there is no law that says you have to write like everybody else... We write stilted English because we unconsciously assume that this is expected of us… if we analyzed the situation we would find this isn’t true; but we never do.‘ [pp204-5] Although that comment about the importance of editing was not directed at lawyers and contract writers, this one certainly is:
‘All you need is to stop being stuffy and talk like a human being … But there is one profession that thinks it can’t write without long sentences: the lawyers. They maintain that all possible qualifications of an idea have to be put into a single sentence or legal documents would be no good‘ [p111]
Tip 6: ensure the parties can understand everything that they read.
