Snarf Zagyg
Notorious Liquefactionist
So we are now on part 3 of the occasional series on the law- again, this is a general explainer about litigation, but has application to TTRPGs due to the current kerfuffle over the OGL.
How to Do Your Own Legal Research: Worried about the OGL?
Law is Hard: Worried About the OGL (Part 2)
Legalese. If you’ve ever had the misfortune of reading a contract, a complaint, or one of those licensing agreements wherein you agreed to give Google your first-born child and arbitrate all claims in Outer Mongolia, you understand exactly what I mean. Heck, if you're EVERY SINGLE PERSON ON ENWORLD DEBATING THE FINER POINTS OF "PERPETUAL," you can smell exactly what I'm cooking.
That's right- legalese, or the unending string of verbiage that occurs when you let loose a pack of frenzied attorneys upon word processing programs. At a certain point, you’ve probably asked yourself whether or not it’s all necessary. Can’t they, you know, just write in American? Bigly? After all, if we can run the governments and corporations in 280 characters or less, why can’t attorneys write documents that people can understand? That's how things work, right? By twitter? Oh ... what happened with twitter? Oh ... no. I didn't get that memo. Anyway ...
The answer to the question of why legalese is all so complicated is ... wait for it ... ... eh, it’s complicated. Boiled down, it relates to the following factors:
1. Jargon.
Jargon gets a bad rap, and some of that bad rap is well-deserved. Jargon is a classic barrier to entry; it keeps some people in the know, while excluding others. After all, that’s why you used Pig Latin around Chad. "Illkay ethay ardbay!" But while lawyers can, and do, go overboard with jargon, certain terms allow for a precision that would otherwise be lacking. You wouldn’t want your doctor telling the nurse, “Hey, the guy has a, you know, heart thingy. He probably needs a wee bit, but not too much, of that liquid-y thing. Probably want to watch out for stuff, like that weird thing that happens to the squishy bits in his whatchamacallit.”
Same with attorneys. A Motion to Dismiss is a different than a Motion for Summary Judgment. A statute of limitations is different than a statute of repose- and neither of them have anything to do with a Statute of Frauds (which is about contracts). Sometimes, a a case's name is used to refer to an entire concept- McDonnell Douglas, for example, isn’t an airplane manufacturer when you're talking to an attorney; it’s a burden-shifting framework for certain types of cases. When an attorney says Iqbal/Twombly, they aren't just spewing gobbledygook to repel a Jabberwock, they're talking about a heightened pleading standard. While this jargon might exclude people, it also makes it much easier to communicate concepts precisely and quickly.
2. Good artists borrow, great artists steal.
Most of us were taught not to plagiarize. But a practicing attorney plagiarizes ... all ... the ... time. The number of documents created from scratch by most attorneys will be almost zero; instead, they will be plagiarizing themselves or other attorneys. What does this mean? Well, let’s say that 200 years ago there was a reason for attorneys to put some phrase in a document ... something like “COMES NOW” or some extraneous “WHEREFORES” or the ever-popular "WHEREAS." That document will be passed down, modified, and re-used over time, but those phrases will never be dropped. EVER.
Every new attorney will come to that document and think, “Hey, I’m not sure about who COMES NOW, and why they COMING, and why it has to be NOW, but it's obviously important for something, so I should probably leave it there.” And the cycle will continue, because attorneys are naturally risk-averse and craven creatures. So many documents will contain old, unnecessary, archaic surplusage that is there because, at some point, long ago, that is the way things were done, and no one since then has bothered to change it.
That doesn't mean it's right, or that it doesn't change over time. If you pull up a random court case from the early 1900s, you can see that there is a lot of archaic language and legal-ese that has dropped. Over time, you'll see fewer COMES NOW starting complaints, and fewer contracts that have WHEREAS recitals. But they're still there (to the extent that recitals are often called "whereas clauses").
3. Complexity.
Words are imprecise. This means that any time you are writing anything in the law (whether it’s drafting a statute, drawing up a contract, or motion practice in court), you have the inevitable tradeoff between complexity (to further clarify) and simplification (which necessarily introduces ambiguity). This was expressed in a very nice, old-timey way by Justice John Marshall, who stated, “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” Translated, this is simply re-stating the unremarkable proposition that you can either enumerate all possible instances (the prolixity of a legal code, or a contract that specifies all contingencies) or you can have simple language that might be ambiguous (you have due process, and the amount of process that you are due ... well, good luck with that!).
So the issue is this- complex contracts, complex statutes- they can cover more eventualities. If you look hard enough, you should find the answer to most eventualities. But the complexity itself will eventually cause problems; it's harder to read, to understand, and eventually the complexity might itself introduce ambiguities if all the "parts" don't play well together. On the other hand, simplicity is a virtue- making something simple allows it to be easily understood and digested. But the problem with "simple" is that the devil is often in the details. When every thing is working great, and people are in harmony- simple is good. But when there is a falling out ... well, simple often leads to disagreements because it doesn't cover most eventualities and it sacrifices precision for readability.
4. The accretion of the law.
Lawyers do, on occasion, pay attention to what the courts say (especially when the Court is like, “You, attorney, stop doing lines of coke on the podium. We can all see you.”). So as courts decide cases, these cases and their holdings become incorporated into later documents. Let’s say some court decides that an arbitration provision is only enforceable if it’s written in BOLD, ALL-CAPS, at least 14 POINT FONT, and has its own heading and consists of at least three sentences. Guess what? All arbitration provisions are going to be written like that from now on ... something you can think about when you are arbitrating in the U.S. Virgin Islands.
And over time, a lot of the these decisions become incorporated into what the attorneys are writing- whether it's through the use of boilerplate terms (merger clauses, etc.) or just the desire to make sure everything in the contract is belt & suspenders (redundant). In addition, this also ties into the fact that most attorneys, most of the time, aren't creating a document from scratch; many attorneys, especially new attorneys, will be afraid to remove provisions simply because they don't know if it might be important due to some case or another.
5. Bang for the Buck.
This may be the most difficult thing to understand. But the process of legal writing is time-consuming, and you are paying for it. So let’s say you have to pay for the attorney to find a document to steal ... um ... use as inspiration. Then to edit it. Then to expand it with additional provisions that are specific to your issue. You now have a serviceable, if overly complex, document. What is the cost/benefit for paying the attorney to do the complicated, complex, and time-consuming work of going back into that document and streamlining it so that it “reads nice?” Pretty de minimis, right? What about the cost/benefit of having the attorney create your contract completely from scratch?
So, to answer the question posed by the title of this post- Why do lawyers write like that? Well, lawyers have to write like that some of the time, and usually, you’re not paying them to write it any better, and most incentives keep it that way.
6. Yawn. I AM ANGRY ABOUT THE OGL! YOU PROMISED THAT THERE WOULD BE OGL AND SWEETS!
Fine.
If you look at the OGL, you can see how a lot of this applies. For example, they didn't create a document from scratch (instead basing it off of another open license). You can see that the attorneys who wrote it didn't correct or excise language that they didn't understand (in definitions, they use the word "potation," which is funny, because it's supposed to be the term portation which is used in some computer licenses to cover translations ... "ports" to other systems, but was changed in a spellchecker!). We have people debating the absence of the term "irrevocable," which is something that was added to later open licenses due to possible legal issues (accretion).
Most importantly, and as we see playing out now, we have the eternal battle between complexity and simplicity. The OGL 1.0a is a remarkably simple document. It's two pages. But the simplicity, the same simplicity that allows it to be easily read (and, apparently, endlessly debated) also introduces its own problems.
Also? No sweets. Sorry.
How to Do Your Own Legal Research: Worried about the OGL?
Law is Hard: Worried About the OGL (Part 2)
Legalese. If you’ve ever had the misfortune of reading a contract, a complaint, or one of those licensing agreements wherein you agreed to give Google your first-born child and arbitrate all claims in Outer Mongolia, you understand exactly what I mean. Heck, if you're EVERY SINGLE PERSON ON ENWORLD DEBATING THE FINER POINTS OF "PERPETUAL," you can smell exactly what I'm cooking.
That's right- legalese, or the unending string of verbiage that occurs when you let loose a pack of frenzied attorneys upon word processing programs. At a certain point, you’ve probably asked yourself whether or not it’s all necessary. Can’t they, you know, just write in American? Bigly? After all, if we can run the governments and corporations in 280 characters or less, why can’t attorneys write documents that people can understand? That's how things work, right? By twitter? Oh ... what happened with twitter? Oh ... no. I didn't get that memo. Anyway ...
The answer to the question of why legalese is all so complicated is ... wait for it ... ... eh, it’s complicated. Boiled down, it relates to the following factors:
1. Jargon.
Jargon gets a bad rap, and some of that bad rap is well-deserved. Jargon is a classic barrier to entry; it keeps some people in the know, while excluding others. After all, that’s why you used Pig Latin around Chad. "Illkay ethay ardbay!" But while lawyers can, and do, go overboard with jargon, certain terms allow for a precision that would otherwise be lacking. You wouldn’t want your doctor telling the nurse, “Hey, the guy has a, you know, heart thingy. He probably needs a wee bit, but not too much, of that liquid-y thing. Probably want to watch out for stuff, like that weird thing that happens to the squishy bits in his whatchamacallit.”
Same with attorneys. A Motion to Dismiss is a different than a Motion for Summary Judgment. A statute of limitations is different than a statute of repose- and neither of them have anything to do with a Statute of Frauds (which is about contracts). Sometimes, a a case's name is used to refer to an entire concept- McDonnell Douglas, for example, isn’t an airplane manufacturer when you're talking to an attorney; it’s a burden-shifting framework for certain types of cases. When an attorney says Iqbal/Twombly, they aren't just spewing gobbledygook to repel a Jabberwock, they're talking about a heightened pleading standard. While this jargon might exclude people, it also makes it much easier to communicate concepts precisely and quickly.
2. Good artists borrow, great artists steal.
Most of us were taught not to plagiarize. But a practicing attorney plagiarizes ... all ... the ... time. The number of documents created from scratch by most attorneys will be almost zero; instead, they will be plagiarizing themselves or other attorneys. What does this mean? Well, let’s say that 200 years ago there was a reason for attorneys to put some phrase in a document ... something like “COMES NOW” or some extraneous “WHEREFORES” or the ever-popular "WHEREAS." That document will be passed down, modified, and re-used over time, but those phrases will never be dropped. EVER.
Every new attorney will come to that document and think, “Hey, I’m not sure about who COMES NOW, and why they COMING, and why it has to be NOW, but it's obviously important for something, so I should probably leave it there.” And the cycle will continue, because attorneys are naturally risk-averse and craven creatures. So many documents will contain old, unnecessary, archaic surplusage that is there because, at some point, long ago, that is the way things were done, and no one since then has bothered to change it.
That doesn't mean it's right, or that it doesn't change over time. If you pull up a random court case from the early 1900s, you can see that there is a lot of archaic language and legal-ese that has dropped. Over time, you'll see fewer COMES NOW starting complaints, and fewer contracts that have WHEREAS recitals. But they're still there (to the extent that recitals are often called "whereas clauses").
3. Complexity.
Words are imprecise. This means that any time you are writing anything in the law (whether it’s drafting a statute, drawing up a contract, or motion practice in court), you have the inevitable tradeoff between complexity (to further clarify) and simplification (which necessarily introduces ambiguity). This was expressed in a very nice, old-timey way by Justice John Marshall, who stated, “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” Translated, this is simply re-stating the unremarkable proposition that you can either enumerate all possible instances (the prolixity of a legal code, or a contract that specifies all contingencies) or you can have simple language that might be ambiguous (you have due process, and the amount of process that you are due ... well, good luck with that!).
So the issue is this- complex contracts, complex statutes- they can cover more eventualities. If you look hard enough, you should find the answer to most eventualities. But the complexity itself will eventually cause problems; it's harder to read, to understand, and eventually the complexity might itself introduce ambiguities if all the "parts" don't play well together. On the other hand, simplicity is a virtue- making something simple allows it to be easily understood and digested. But the problem with "simple" is that the devil is often in the details. When every thing is working great, and people are in harmony- simple is good. But when there is a falling out ... well, simple often leads to disagreements because it doesn't cover most eventualities and it sacrifices precision for readability.
4. The accretion of the law.
Lawyers do, on occasion, pay attention to what the courts say (especially when the Court is like, “You, attorney, stop doing lines of coke on the podium. We can all see you.”). So as courts decide cases, these cases and their holdings become incorporated into later documents. Let’s say some court decides that an arbitration provision is only enforceable if it’s written in BOLD, ALL-CAPS, at least 14 POINT FONT, and has its own heading and consists of at least three sentences. Guess what? All arbitration provisions are going to be written like that from now on ... something you can think about when you are arbitrating in the U.S. Virgin Islands.
And over time, a lot of the these decisions become incorporated into what the attorneys are writing- whether it's through the use of boilerplate terms (merger clauses, etc.) or just the desire to make sure everything in the contract is belt & suspenders (redundant). In addition, this also ties into the fact that most attorneys, most of the time, aren't creating a document from scratch; many attorneys, especially new attorneys, will be afraid to remove provisions simply because they don't know if it might be important due to some case or another.
5. Bang for the Buck.
This may be the most difficult thing to understand. But the process of legal writing is time-consuming, and you are paying for it. So let’s say you have to pay for the attorney to find a document to steal ... um ... use as inspiration. Then to edit it. Then to expand it with additional provisions that are specific to your issue. You now have a serviceable, if overly complex, document. What is the cost/benefit for paying the attorney to do the complicated, complex, and time-consuming work of going back into that document and streamlining it so that it “reads nice?” Pretty de minimis, right? What about the cost/benefit of having the attorney create your contract completely from scratch?
So, to answer the question posed by the title of this post- Why do lawyers write like that? Well, lawyers have to write like that some of the time, and usually, you’re not paying them to write it any better, and most incentives keep it that way.
6. Yawn. I AM ANGRY ABOUT THE OGL! YOU PROMISED THAT THERE WOULD BE OGL AND SWEETS!
Fine.
If you look at the OGL, you can see how a lot of this applies. For example, they didn't create a document from scratch (instead basing it off of another open license). You can see that the attorneys who wrote it didn't correct or excise language that they didn't understand (in definitions, they use the word "potation," which is funny, because it's supposed to be the term portation which is used in some computer licenses to cover translations ... "ports" to other systems, but was changed in a spellchecker!). We have people debating the absence of the term "irrevocable," which is something that was added to later open licenses due to possible legal issues (accretion).
Most importantly, and as we see playing out now, we have the eternal battle between complexity and simplicity. The OGL 1.0a is a remarkably simple document. It's two pages. But the simplicity, the same simplicity that allows it to be easily read (and, apparently, endlessly debated) also introduces its own problems.
Also? No sweets. Sorry.
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