Jusletter IT

Traditional legal writing is different from the Standard English used today. Contracts consists of archaic language, adds «legalese» words and tends to break Standard English writing and grammar rules producing language difficult to read and understand. The writing style has persisted for centuries and is a challenge to comprehend by users not trained in legal writing. In a growing global contracting environment, the need to move toward standardizing contract writing is becoming critical. Re-design of contracts to enhance readability is prevalent today with companies standardizing templates, writing in Standard English¹ and automating contract drafting. This paper introduces the idea of a controlled contract language (CCL). The research builds on existing concepts of Plain English, Contract Simplification, and Modern Legal writing,² which provide for documented approaches striving to draft contracts that all users can read and understand. Specifically, the research focuses on simplifying the language and grammar.

The comparative model used for the analysis is a well-known controlled language, ASD-100STE³, Simplified Technical English, used in the aerospace industry for technical and maintenance manual drafting. ASD-100STE’s underlying goal when developed was to investigate the readability and to remove ambiguity in maintenance documents. Specific focus was on comprehension among non-native English speakers and accuracy of translations into other languages. Today, the controlled ASD-100STE document with its defined dictionary and writing rules are coded into most technical manual writing programs. The result is a consistent use of terminology and writing style in technical manuals across the aerospace industry. Could the natural language of today’s contracts be developed into a controlled contract language?

Contract law is seen differently today, both scholars and practitioners are realizing apart from being legal instruments, contracts and even the law are managerial instruments.⁴ Due to the persistent use of the traditional legal writing contracts tend to be long, complex and hard to understand. Contracts aren’t generally seen as value added managerial documents or assets to a company. Furthermore, with globalization the meaning of words, the implications of actions and the content of applicable legal rules has become more difficult to determine.⁵ The consequences are that neither contract drafters nor end users responsible for executing the contract obligations interpret contracts the same, leading to misunderstandings, re-work and disputes.

Change in how contracts are written, designed and presented is taking place. Organizations such as Clarity⁶, Plain Language Association International (PLAIN)⁷ and International Association for Contracts and Commercial Managers (IACCM)⁸ are part of driving this change.⁹ Even the US federal government has an established organization, PLAIN, to develop guidelines how to improve government communication to the public. In their Federal Plain Language Guidelines document they state: «The first rule of plain is: write for the audience.»¹⁰ The shift toward how contracts are written has started and it is inevitable. Peter Butt writes, how traditional legal writing will die due to two realities: «first, that a modern, direct style of writing is as precise and legally effective as traditional styles of legal writing; and second, that citizens of modern societies have the right to read and understand for themselves the documents they sign and the laws that bind them».¹¹

A controlled contract language could be a solution to find a standardized baseline guidance for contract drafting. Traditional elements from contract law are necessary; however, complexity in word choices and grammar could be simplified and streamlined to enhance readability. ASD-100STE evaluated the natural language of technical manual writing and developed a controlled language. The technical communication Body of Knowledge (TCBOK), defines a controlled language as:

 

«Controlled languages (sometimes called controlled natural languages or CNLs) are subsets of human languages, such as English or Chinese. Controlled languages use restricted grammar rules and vocabularies (typically between 800 and 1,000 words) to reduce or eliminate ambiguity and complexity. They are often used to simplify technical communication, especially for the benefit of non-native readers.»¹²

Technical language, when controlled, standardizes writing and brings consistency. Can contract writing benefit from such an approach?

Due to its technical nature, ASD-100STE was selected as a comparison model in this article. ASD-100STE evaluated the natural language of technical manual writing and developed a controlled language. It is an international specification for the preparation of technical documentation. The Simplified Technical English (STE) language guide was originally developed through a project aimed at investigating the readability of maintenance documentation in the civilian aircraft industry. From the project ASD-100STE, STE was released in 1986 and serves today as the global standard for commercial and defence aerospace maintenance manual writing.¹³

The goal of STE is to assure the users of aircraft technical manuals can read and understand the content in order to perform the aircraft maintenance correctly. Not understanding the maintenance manual and incorrectly performing a maintenance task could have deadly repercussions. Errors in contract execution, due to issues steaming from misunderstanding contract writing, probably aren’t deadly. However, companies spend significant amount of money settling contract disputes due to misunderstandings. For non-native English speakers, the problem of readability and understanding contract language is magnified. Simplifying contract language is relevant as companies focus on streamlining contracts in an increasingly global environment.  The selected words, phrases and writing when placed in a controlled environment, such as a company contract drafting software, can either create further complexity or reduce complexity dependent on the selected input to the controlled environment.

Two key features of STE are: an approved dictionary and a set of writing rules. The common vocabulary was identified and documented in a dictionary, sufficient enough to accomplish any required technical writing. The baseline words were selected for their simplicity and ease of recognition. The English language has many different words with the same meaning. For example, «start» was chosen instead of «begin», «commence», «initiate», or «originate». This same type of correlation can be drawn to contract writing which uses many different words with the same meaning. ASD-100STE selected the American Merriam-Webster’s dictionary to be used when there is a choice between American English and British English words and spelling. In the controlled document, words are not only defined but synonyms are flagged as «unapproved» or «unknown words». The underlying philosophy of the STE is «one word – one meaning»¹⁴, eliminating words with the same meaning all together. One important fact to note with STE is the clear intent that drafters should go beyond the documented vocabulary to supplement with other necessary words required to convey the information. The writing rules include guidance on short sentence structure following Standard English grammar rules. The writing rules cover aspects of grammar, style and layout, with the goal of enhancing readability. Coding the dictionary and writing rules into drafting software, with highlights and flags to identify those words or writing rules specified in the controlled language document, notifies the drafter to review the word or sentence and either replace or reject the suggested edit.

A controlled language is a rule based approach to a language making it highly adaptable to machine learning. Matthew Roach identifies how having suggested definitions and clauses appear as you draft, and having the ability to hover over terms and see their meaning¹⁵ are ways the legal profession should leverage technology «to maximize their value and usefulness». When the vocabulary and writing rules are incorporated into a writing program it provides authors guidance, driving consistency across all writing. With software rapidly automating writing, an ASD-100STE model, focused on standardizing contract language could be the foundation to shifting away from traditional legal writing.

Contracts and legal writing is its own technical language, because of this «contract drafting also requires some technical skills that apply universally regardless of the contract substance».¹⁶ No global standardization in contract vocabulary or writing rules exist today. «Since natural language does not have a precise semantics, it can be difficult to write complex ideas in a natural language in a clear and unambiguous way.»¹⁷ Ambiguity arises when a word or expression that can be understood in two or more possible ways.¹⁸ «Ambiguity often arises from the use of the English language.»¹⁹ Furthermore, non-native English speakers and different legal jurisdictions interpret English words differently. The need for uniformity exists and is relevant. Even a limited contract dictionary defining most common contract vocabulary could establish a baseline standard. Contracts do not only contain contract law derived terms, but also common business and managerial terminology. Terminology such as «scope», «deliverables», «payment schedule», etc. are all business terms common in the natural language of contracts. The main goal of a controlled language is to enhance readability, as such the analysis and assessment of a controlled contract language needs to focus on reducing complexity.

Contract law principles have shaped the art of contract language and how contracts are written today. The content and purpose of a contract is also shaped by the business relationship and the transaction contemplated. The key prerequisite for users to perform any task contract drafters should use language that communicates the information clearly.²⁰ In order to communicate contract language clearly the drafter needs to have a basic knowledge of the meaning of the terminology. Uwe Muegge outlines ten writing rules to enhance accuracy and reduce ambiguity in the context of machine language translation.²¹ Machine translation software provides the benefit of customization by profession which enhances the results by limiting allowable substitutions specific to the technical language. Moving toward machine readable and writable contracts the same principles as machine translation for words could be leveraged.

Many current legal drafting applications exist in law firms and automated contract drafting software. However, standardization across the field of contracts has not happened yet. Company specific vocabulary and writing rules could be considered a controlled language when housed in technical applications, which limits or suggests data to be used, i.e. templates, clause libraries and in-house dictionaries. For example, Adobe Legal Department has published a «Department Style Guide»²² outlining specific words in legalese with suggested Standard English equivalents to use. The document also identifies surplus words and synonyms. By analysing a large sample set of contracts with the use of technology most commonly occurring vocabulary and even specific writing can be identified beyond one company. Below is an example of common traditional legal terminology with equivalent Standard English. For non-native English speakers using the «ordinary sense» of a word is critical. The «golden rule» principle requires that words be given their ordinary sense.²³ This key statement of principles comes from Lord Wensleydale’s opinion in Grey v Pearson²⁴ and dates back all the way to 1857. In addition, the Plain meaning rule in the US common law system has been in practice for year. Removing or replacing legalese terminology with Standard English, for example: «herein» with «in this agreement», «in witness whereof» with «signed», «subsequent to» with «after» is practised. The underlying approach is to remove ambiguity, use common terminology and simplify the writing, below Figure 1, shows example rules to consider when developing a controlled contract language.

Rule	Goal	Example
Eliminate duplicate and redundant words	Clarity Remove ambiguity	Use «sell» rather than «sell, convey, transfer, and assign» or «sell and transfer»   Use «to» versus «for the purpose of»
Eliminate synonyms	Simplify Eliminate unnecessary legalese	Use «complete» versus «full and complete» Use «void» versus «null and void»
Eliminate or replace archaic words	Use of Standard English Eliminate unnecessary legalese	Remove words such as whatsoever, furthermore, wholly and fully, whereas Use «per year» versus «per annum»
Eliminate/Replace ambiguous terms	Clarity	Replace «best effort» with specific obligation
Do not turn verbs into nouns	Clarity	Use «conclude» versus «arrive at the conclusion» Use «apply» versus «make an application» Use «consider» versus «take into consideration»

Figure 1. Example Vocabulary Rules

Why is it important to reduce complexity in legal writing? I conducted a comparative analysis using the Flesh-Kincaid Readability Test²⁵ to determine the effect on readability when re-writing an agreement in Standard English. Two different short Non-Disclosure Agreements (NDAs)²⁶ were used, both 2-pages in length. The first one is a «short-form» NDA from a multi-billion-dollar US company, which a team had re-written to simplify the document, to enhance readability for all users. The second, NDA developed by ContractStandards²⁷, a company who develops simplified contracts and contract clauses written in Standard English, available for industry use. The two selected documents were both simplified  to improve readability by selecting common terminology, shortening sentences and writing in active voice. For the traditionally drafted NDA, the readability test yielded a readability score equivalent to a grade level education of 15, see Figure 2, while the second NDA written in Standard English yielded a readability score of 12, Figure 3. The scores 15 and 12 represents years of equivalent US education required to comprehend the writing. The difference of three years, in the tested scenarios, is equivalent to the difference of a senior in high school and junior in college.

Figure 2: Readability Score 15 – Standard Short Form Confidentiality Agreement

Figure 3: Readability Score 12 – Simplified Short Form Confidentiality Agreement

The results show the level of education required to comprehend contracts written in traditional legal writing style requires three years of college education. NDAs are complicated legal documents, however, the writing can be simplified. Introducing contract language simplification does not mean contracts are becoming any less of legal documents. Rather, changes in word choices to Standard English and using proper English grammar is the aim. The NDA with a lower Flesh-Kincaid readability score  focused on replacing traditional legal writing with Standard English words and following English grammar rules. Sentences were shortened, without changing the context or protections of the contract. The intent of a controlled contract language is to simplify the writing while still conveying the technical language of the profession.

Developing a dictionary with a limited set vocabulary derived from common contract terminology can be trickier than just defining common redundant vocabulary and obvious synonyms. However, employing the same criteria as ASD-100STE did; simplicity, flexibility and frequency of use could work. For example, «do» is simpler, more flexible and much more frequent than «achieve», «carry out», or «accomplish».²⁸ Each vocabulary term has a definition in the same way as any dictionary.  The dictionary is integrated into the writing software so it can be access during the drafting process. In addition to providing dictionary definitions to terms ASD-100STE dictionary outlines unallowed terms, helping to eliminate synonyms.

Moving from traditional legal writing to Standard English requires the examination of terms of art in contracts. As contracts are both legal and managerial tools, terms of art steams from both contract law and business operations. Legal terminology has not changed much over time. The intent of a controlled contract language is not to induce a debate over what terms should be left in legalese, rather it is to summarize and define those terms that are already in use focusing on Standard English as the preference, but not as an absolute. The accepted practices and terminology based on tradition, which are driving complexity, should be evaluated. Examples are archaic language, such as; «herein», «therewith», and «in light of the fact that», which can be argued to add no additional meaning.

Use of clause libraries as a guide for content inclusion is a common approach in contract drafting. ASD-100STE focuses on the words used, taking a micro view into the language. This helps eliminate risks inherent in a copy/paste of an entire clause and not reading every word for applicability. Today a manual review of contract defined terms is a common and cumbersome task often performed as the last review of a contract draft. Consistency in the use of terminology and defined terms is critical in contract writing. The approach of creating an industry standard guidance document is different from developing an automated drafting software application. In the ASD-100STE model, the controlled vocabulary and grammar rules are individually documented in a pdf file, which can then be integrated into any company drafting software.

Contract document standards and drafting guidelines are generally built to assure compliance, consistency and efficiencies. With automation, templates and automatic contract generation tools have expedited contract drafting significantly. However, the risk associated with copy/pasting entire clauses is the false sense of comfort that the language provides necessary legal protections, because it was reviewed before. The result is drafters tend to expedite reading the document or not read it at all. Without standards and rules at the word or sentence level there are no notifications or checks as to applicability of words and content to the drafter. Today good comparative software exists to compare the differences between documents highlighting deviations but those are post initial drafting stage. ASD-100STE is designed to be an aid in the initial drafting stage of a document.

By providing within the document indicators to the drafter based on the controlled contract language rules it engages the drafter in a 2-way communication by providing indicators and suggested alternatives to words and grammar. Examples of rules for a CCL when striving for writing in Standard English are Standard English rules pertaining to punctuation rules, run-on sentences and writing in active voice, to name a few. When developing set rules to reduce ambiguity in contract writing the context for each grammar rule must be considered. Following standard grammar rules for run on sentences and punctuation should enhances readability without effecting legal protections. Similarly establishing guidelines on suggested maximum number of words in a sentence could reduce complexity without compromising legal protections. Focus is on simplifying to enhance readability not to remove content. 

A controlled language integrated into a contract writing application would provide indicators when the author deviates from the vocabulary or writing rules. Company specific terminology and definitions are coded into the program to assist in assuring company or contract specific terminology is used consistently. In the legal and contracts field, most of defined terms and consistent use of terminology  are done manually today. Computer software and Contract Management Lifecycle (CLM) applications focuses on streamlining document initiation, contract content, and contract flow, not on standardizing contract terminology and grammar rule tracking. A controlled contract language establishes a guidance document to be universally integrated by all software application providers as a standard feature. Envisioned as a new integrated process to draft contracts at the word, phrase and sentence level. It would be specific to the field of contracts with an emphasis on assuring readability for all contract users.

I challenge you to turn of the editing features on your computer and then type a document. You will probably find several typos and mistakes during your own review and your peers would probably find several more. The word processing editing tools have become an essential part of today’s electronic document drafting, we rely on it when typing a message on our phone, writing a simple search in google or writing a novel. So why hasn’t contract writing advanced in producing tools and techniques to standardize contract drafting? Peter Butt believes that «change in legal English will come, but it will be slow»²⁹. Via automated applications coded with standardized rules of writing we could drive for a faster change.

The most relevant problem a contract dictionary would solve is the ambiguities that exist in the English language. Lexical ambiguity occurs when one word has several meanings. Contract drafting is an art. There are standard terms that are used in certain contract types and specific clauses. Below, figure. 4 shows an example of two «Entire Agreement» clauses written slightly differently, much of the «legalese» is removed in the example clause 2. The intent of this paper is not to debate legal terminology, but rather induce a debate if a controlled contract language on a global scale is feasible. Key questions arise among scholars, does «entire» mean «final and complete»?³⁰ Under the common law principle of parole evidence rule³¹ «final and complete» signifies that any prior oral or written agreements are not part of the final agreement. In this case «final and complete» can be considered a term of art and argued that the inclusion is important to provide intended legal protections.

EXAMPLE CLAUSE 1 This Agreement is the entire agreement between the parties and supersedes all prior understandings and agreements between the parties, whether oral or written. This Agreement may be amended only in a written document, signed by both parties.

EXAMPLE CLAUSE 2 This Agreement and Exhibits attached hereto and incorporated herein constitute the entire, final, complete and exclusive agreement between the parties and supersede all previous agreements or representations, oral or written, relating to this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

Figure 4. Comparison of «Entire Agreement» Clauses

The goal when defining the dictionary is to eliminate ambiguity. «Covenant» and «Obligation» both mean «a formal agreement or promise, usually in a contract». Obligation is the more commonly used term in modern day English and more common in English language school books for non-native speakers. Figure 5 shows a sample set of suggested Standard English vocabulary terms to replace traditional legal terminology equivalent.

Legalese Terminology	In Contracts – Standard English
afforded	given
aforementioned	that, these, previously mentioned [or best omitted]
at the present time	now
concerning the matter of	about
due to the fact that	because
during the time that	while
for the purpose of doing	to do
hereby	[omit; no need for replacement word]
in witness whereof	signed
whereas	[omit for recitals and any other use]

Figure 5. Example Standard English Dictionary Words to Replace Traditional Legal Writing Words

Every contract is unique. The type of industry, contract type and legal jurisdiction has different legal implications and terms of art. A controlled contract language guidance does not replace the human interface. Everything that is written and edited must be considered in the context of the business deal. 

The traditional legal writing style is one of the main reason contracts are complex and difficult to read. Legal and contract writing is a technical language in its natural form dating back to the early days of common law. Through the centuries the writing style and vocabulary has changed little. With an increasingly global business environment, it has become critical for all users to understand their contracts. A controlled language is built on a foundation of standardizing a technical language to reduce complexity and enhance readability. Contract simplification today is focused on writing in standard English and moving away from traditional writing style. The model examined in this article, ASD-100STE, is a controlled language for writing technical maintenance manuals in the aerospace industry. ASD-100STE has two key features: an approved dictionary and a set of writing rules. Two key areas in contract writing which can  reduce complexity and increase comprehension for both non-native English speakers and those not trained in the legal field. Documenting a standard contract dictionary and writing rules in a controlled environment could bring consistency into the drafting process on a universal scale. A controlled contract language would be highly adaptable for integration into an automated drafting software, directly supporting the current move to machine learning and automating contract drafting.

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Milva Finnegan, PhD Candidate & Researcher, University of Vaasa.