September has rolled around again, and it is back to school. Reviewing the last year, I note that I have drafted rather a lot of contracts: conditional fee agreements, collective conditonal fee agreements, damages based agreements, litigation management agreements and litigation funding agreements amongst them. My plan for the coming year, is to focus on improving the “Plain English” quotient of the documents I anticipate being asked to produce.
I have written about “Plain English” before. Plain English is a style of writing that is clear, concise, and free of jargon, enabling readers to easily understand the content without specialized knowledge. In legal contexts, Plain English involves using straightforward language to explain legal obligations, rights, and procedures, making the content accessible to non-experts. The goal is to remove ambiguity, reduce the complexity of legal texts, and ensure that all parties clearly understand the terms to which they are agreeing.
The benefits of Plain English drafting
The benefits of drafting legal documents, or indeed any documents, in Plain English are obvious:
Accessibility: Plain English makes legal documents understandable to a wider audience, including clients who may not have a legal background. This accessibility is crucial in fostering trust and transparency between legal professionals and their clients.
Clarity: Ambiguous language can lead to misinterpretation, disputes, and litigation. By drafting in Plain English, legal professionals can minimize these risks, ensuring that the terms are clear and unambiguous.
Efficiency: When documents are easy to read and understand, they save time for both the drafter and the reader. Clients can quickly grasp the essential points without needing extensive explanations, which streamlines the legal process.
Compliance: Some jurisdictions encourage or even require the use of Plain English in consumer contracts. Complying with these guidelines can prevent legal challenges and regulatory penalties.
Client Satisfaction: Clients are more likely to be satisfied with legal services when they understand what they are agreeing to. This understanding can enhance the client-lawyer relationship and reduce the likelihood of disputes arising from misunderstandings.
Just as a picture can be worth a 1000 words, so can an example, and with that in mind, I have obtained two examples of consumer contracts to illustrate some of these points. I suspect that most people reading this blog will have a contract with either Apple Apple Media Services Terms and Conditions or with Google Google Terms of Service 2024 and some people will have contracts with both: so let us examine together, what you have signed up to!
Analysis of Apple and Google Contracts
Apple Media Services Terms and Conditions
The Apple Media Services Terms and Conditions provide a comprehensive example of a consumer contract that is generally well-written but could benefit from further simplification. The document is detailed, covering various aspects of the services Apple offers, from payment terms to the use of content.
Strengths:
Structure: The contract is well-organized with clear headings, making it easier for users to navigate through different sections such as “Payments, Taxes, and Refunds” and “Termination and Suspension of Services.”
Specificity: The document clearly outlines the rights and responsibilities of both Apple and the user, which reduces ambiguity.
Areas for Improvement:
Some sections, such as those dealing with payments and the right of cancellation, use complex sentence structures that may be difficult for an average user to follow. For example, “If your primary payment method cannot be charged for any reason (such as expiration or insufficient funds), you authorize Apple to attempt to charge your other eligible payment methods in order from top to bottom as they appear on your account settings payments page.” Terms like “merchant of record” and “digital rights management” could be simplified or explained in layman’s terms to improve comprehension.
The overall impression that this contract creates is that there is a clear need to shorten sentences and break down complex ideas into bullet points or numbered lists to improve readability. If technical terms are going to be used, it might be an improvement to introduce a glossary for terms that cannot be simplified but are necessary for legal precision.
Google Terms of Service
Turning to the second document, it is quite a contrast both in length and in simplicity. The Google Terms of Service, effective as of May 22, 2024, exemplify a more accessible approach to legal drafting compared to the Apple contract.
Strengths:
Use of Plain English: Google’s contract is written in a conversational tone, directly addressing the user with “we” and “you,” which enhances readability and user engagement. For instance, “We know it’s tempting to skip these Terms of Service, but it’s important to establish what you can expect from us as you use Google services, and what we expect from you.”
Clarity: Google uses straightforward language to describe complex legal concepts, such as the implications of using its services and the user’s rights and obligations.
Areas for Improvement:
Some sections could be consolidated or cross-referenced to reduce repetition. For example, the content on service-specific terms could be more clearly integrated with general terms to avoid duplication. While the document is written in a user-friendly manner, it is still quite long. Further summarisation or the use of summaries at the beginning of each section could enhance user comprehension.
It would be possible to include brief summaries at the beginning of each section to highlight key points. Otherwise the document reads much more clearly than the Apple contract. Although perhaps not so directly relevant to legal contracts, the document being made in the digital space, could be made interactive, allowing users to click on terms they don’t understand for immediate explanations or examples.
Importance of Key Contractual Clauses
It is always interesting to see “how the other half live” and these two sample documents, I suspect are amongst the most common consumer contracts made in the world, at the current time. Although the challenges of drafting retainers, conditional fee agreements, damages-based agreements, and litigation funding agreements, are different, there is a commonality of approach.
Many of these documents will contain or evidence contracts made by consumers. How many clients actually read those documents? If they do read them, how many of them understand them? Yet clarity and comprehension should be strived for, even if they prove elusive to obtain.
When drafting retainer documents, certain clauses are particularly critical:
Scope of Retainer Clauses: Perhaps the single most neglected clause, is where the lawyer drafting the retainer neglects to define and clarify, precisely what work they are going to do, for the fees specified within the contract. Defining the scope of services provided under a retainer ensures that both parties have a mutual understanding of what is included in the agreement. This clarity helps avoid disagreements about the extent of the services covered. This in turn should avoid the need for the client to be charged “extras” and avoid at the outset a potential dispute over the bill.
Billing Clauses: A surprising number of retainers that come across my desk, are drafted without regard to the Solicitors Act 1974 and the commonlaw gloss placed on it, in relation to statutory bills. The terms may specify that monthly bills will be sent, but are silent as to whether these are requests for payment on account or interim statutory bills. Transparency in billing is essential and also the removal of doubt as to whether a client has a right to an assessment of a particular bill. Clauses should clearly state how fees are calculated, what expenses are recoverable, and the frequency and method of billing. This clarity prevents misunderstandings and ensures that clients are fully aware of their financial obligations.
Termination Clauses: Clear termination clauses are vital to avoid disputes about how and when a contract can be ended. This includes specifying the grounds for termination and any notice period required. The provision of a “stick or twist” clause in a conditional fee agreement, or other contingency fee agreement is particularly important. In addition to termination rights, consideration should be given to including rights to suspend performance of the contract for reasons of lack of payment, or how other unfortunate events, such as a client’s death or insolvency will effect the continuation or discharge of the contract.
Provision for interest: We live in inflationary times. Moreover it is common for clients even when billed regularly, to fall behind in their payments. In those circumstances, including clauses that outline the accrual of interest on unpaid invoices and at an appropriate commercial rate provides security for the service provider and incentivises timely payment.
Security rights: When very large fees are being incurred on major cases, clauses that secure the lawyer’s right to retain documents or funds until payment is made are essential in protecting the legal professional’s financial interests. In addition contractual rights need to be considered alongside other rights the professional may have: for example the equitable lien in contentious business, or the potential to take other security such as a charging order.
Keypoints
Pulling the threads together, the following points may be thought to be worth noting, when drafting anything and striving for Plain English:
Prioritise Clarity: Use short sentences, active voice, and avoid legal jargon wherever possible. This makes the contract accessible to all parties, ensuring that everyone understands the terms.
Structure for Readability: Organise the document with clear headings, bullet points, and numbered lists. A well-structured document helps the reader navigate the content more easily and reduces the risk of misunderstanding.
Use of summaries and glossaries: Provide summaries for complex sections and include a glossary of terms to help users understand the content without needing legal expertise (where appropriate!). This is particularly important in contracts that deal with complex financial arrangements or technical terms.
Engage with the Reader: Use conversational language where appropriate to make the contract feel less intimidating and more user-friendly. Engaging the reader in this way can enhance their understanding and retention of the contract’s terms.
By implementing these strategies, legal drafters can strive to enhance the accessibility, clarity, and effectiveness of retainers, conditional fee agreements, damages-based agreements, and litigation funding agreements, ultimately benefiting both the clients and their practice.
This approach attempts to not only minimise the risk of disputes but also foster a more transparent relationship between the lawyers and their clients. In the end, disputes will still happen: that is the nature of things. But a well drafted retainer should go a considerable way to reducing the number of disputes, limiting their scope or in the final analysis, protecting the interests of the parties.