Thanks for the Contract. Can You Tell Me What it Says?

Not long after you start law school, someone you know will say the following to you:

I bet you’re going to start using phrases like “party of the first part” and writing in fine print now.

And then they will laugh at you. It happened to me, and I was an English major, so I wrote pretentiously already.

Lawyers complain about the stereotype – that we all just make things more confusing – but we’re not doing much to change this conventional wisdom. Case in point: I just finished revising a client’s documents as part of an HR audit. The company needed a Noncompete/Nondisclosure Agreement, so I opened a Sample Noncompete Agreement to tweak, and read the following:

W I T N E S E T H:

WHEREAS, the Company is principally engaged in the business of making widgets (hereinafter referred to as the “Business”); and

WHEREAS, Employee in his or her capacity as an employee of the Company may acquire extensive knowledge of the operations of the Business and certain confidential and proprietary information relating to the operation of the Business, as well as strong contacts and relationships with the Company’s customers, suppliers, and employees; and

WHEREAS, the Company is unwilling to employ the Employee unless Employee agrees to be bound by the terms of this Agreement; and

WHEREAS, to induce the Company to employ the Employee the Employee desires to execute this Agreement and be bound by the terms hereof.

NOW, THEREFORE, in consideration of the covenants and mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

1. Recitals.  The recitals set forth above are incorporated herein by this reference.

2. Consideration.  On the date hereof, as consideration for the Employee’s agreement to be bound by the terms of this Agreement, the Company agrees to hire Employee.

And on and on and on it went. As I edited the document, I started to wonder:  why am I not trying to make this more clear?

So I asked some of my non-lawyer friends1 what they thought of contracts that read like the one above. Not surprisingly, they universally hated them. But my followup question was a lot more interesting: Why, if they all hated contracts like this, did they accept them, sign them, let their lawyers write them in the first place? Why not ask for it in plain English?

To a man, they all said basically the same thing: Legal documents are different. Right? All those redundant phrases and grammatical gymnastics are what protect us from liability, right?

Right?

Well, no. Not right. There are some areas of the law that still require a lot of antiquated English, like Real Estate. And practices may lend themselves to confusion. Like patents. Patents are confusing to, like, 90% of lawyers even.2

But in labor and employment law, there is absolutely no reason that a document has to be grammatically confusing. In fact, confusion is the #1 reason that your employment documents should be written in plain English. For some reason, though, most of them read like the last page of an auto loan application.

Why Employment Docs Sound So Dumb

Employers and lay people rightly blame attorneys for the legalese, but every attorney you talk to will have an equally-bad tale about reviewing a set of documents a business owner has pieced together from various free online sample documents, creating a Franken-contract that creates more liability than it eliminates.3

There’s a million reasons legalese is tougher to kill than kudzu. After my informal poll, though, I’ve figured out two central problems:

1. Everyone – lawyers and clients and employees alike – expects legal documents to be difficult to read; and
2. Lawyers can’t bill for re-writing something from scratch if they have a version of it on file (so the old language just gets reused).

Neither of these are good enough reasons to keep writing that stuff up there.

Why They Shouldn’t

I’m here to tell you, folks: If you hire a lawyer to write a contract for you, it doesn’t have to sound like that quote above. It can – that language is perfectly legible to attorneys and judges, and it’s just as legal as anything – but I don’t think it should. If you haven’t already, I think it’s time to rewrite your employment documents in Plain English. Here’s why:

1. Everyone Likes It Better.

It sucks to read legalese. Sucks for your employees, too.4 What you may not know is that it also sucks for lawyers and, more importantly, judges. An actual empirical study proved that 2/3 of judges found plainly-written filings more persuasive than their more traditional counterparts, and that even judges “skim” documents “for their essence” when faced with legalese.

2. Your Employees Will Read It.

When I was clerking in Chancery Court, we handled a lot of noncompete disputes. In every single case, the employee’s attorney argued that the Employee didn’t read the document, or didn’t know what he was signing even if he had read it. In 90% of the cases, this argument failed. But you know what? The employer still had to pay their attorneys to write briefs and appear in court to defend against it. By just eliminating this single argument, you could probably save yourself $1,000 to $2,000 in litigation costs.

And if he decided that an agreement was confusing – to a lay person, not a lawyer – my judge was not above tossing the case on those grounds, alone.

All your documents, from the Handbook to the CEO’s bonus structure, should be tailored to the person who’s name is in ink at the bottom.

3. After They Read It, Your Employees Will Still Like You.

Check out “WHEREAS”-es numbers 3 and 4 up there.

“Company is unwilling to employ the Employee unless…” ?

“to induce the Company to employ the Employee…” ?

“Welcome to the Company! We’ll fire you if you don’t agree to this stuff!” Is that really the image you want to convey on your new hire’s first day at the job? I didn’t think so.

I know that change is hard, and the thought of redesigning all of your employment documents to make them sound more conversational is sort-of scary. But, I promise you, more confusing ≠ more protection. It means less.

I’m In! What Now?

So hopefully I’ve convinced you of the “why” – that reviewing those old employment documents is worth it. In a future post, I’ll go over the “how”. We’ll talk about some common misconceptions about Plain English documents and how to work with your attorney to get usable, solid docs in language that people actually understand. I’ll also show you what that gobbledygook up there became when we were all done with it.

In the meantime, if you have questions about your employment documents, drop me a line.

 

 

1. You know, the ones that made fun of me. [↩]
2. I think that percentage is actually codified in the Code of Federal Regulations somewhere. [↩]
3. This, of course, is still the fault of the legal community, which wrote the source documents in a way that made them so easily converted to gibberish. [↩]
4. Which is why so many of them don’t actually read these things. More on that in a minute. [↩]