I’m reading Eats, Shoots & Leaves for the second time. There’s one part in there that talks about Lawyers and says, “legal English, with its hifalutin efforts to cover everything, nearly always ends up leaving itself semantically wide open.” I agree. But what’s the answer? I’ve heard plenty of talk about plain English, but not much action.
Take the indemnification clause for example. I’ve seen efforts to make them simpler, but they still use words like hold harmless, claims, liabilities, and all the words that lawyers have come to understand after reading hundreds of these clauses. But give the clause to a layman and ask them what it means … you’ll get a blank stare.
So why not try something easier like this:
When it comes to litigation and being sued you’ll take care of your employees and property and we’ll take care of ours regardless of who’s at fault. If there’s anyone else involved, then we’ll just split things according to our fault. We’ll make sure our insurance is in line with this. (A knock-for-knock indemnity prevalent in the oil industry)
or
When it comes to litigation and being sued, all that liability stuff, we’ll just split things according to our fault. (The common law fault-based indemnity)
or
Your’e liable for everything except for stuff that you didn’t have anything to do with. (A sole-negligence indemnity).
I know, I know, all you lawyers who read this will gasp and go into shock. But how is this any worse then a multi-paragraph indemnity followed by a multi-paragraph insurance clause that nobody reads? The more you stuff into these clauses, the more room for ambiguity and misunderstandings.
So which is better: a layman who feels comfortable that his lawyer understand things, but doesn’t understand things himself? Or a layman who understands the risks he’s taking on? I think plain English in the legal industry needs to mean much more than just deleting the “said this” and the “said that” and the heretofores and whereases. It needs to be understood by the person on the street.