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Do clients expect legalese, and how should you handle it?

Over at the Lawyerist, Andrew Mergendahl just posted an excellent article on “here-and-there-words.” We’re of the same mind when it comes to following Bryan Garner’s advice about avoiding these words, and I’ll let you read the entire article for his recommendations about avoiding words like: Herein, heretofore, hereinafter, hereunder, thereof, thereto, therewith, thereunder, therefor, thereon, and therefrom. (Note: I recently posted on the problems with one here-and-there-word—herein)

What’s also interesting about Mergendahl’s article, though, are the comments. Two commentators say that they use legalese because clients expect to see legalese in documents (presumably contracts).

I’ve never had a client ask why my writing doesn’t contain legalese; in fact, my clients have appreciated the fact that they could understand my writing because of its plain-language, conversational tone.

But uneducated clients are one of the hurdles the plain-language movement must overcome. Of course, there are competing concerns here, namely, satisfying your clients while also making sure that their legal documents are clear and free from ambiguity. Sam Glover correctly points out in his comment to Mergendahl’s article that it’s your duty to educate your clients that plain-language writing and drafting will better serve their interests at the front-end, because a poorly written document inevitably invites litigation at the back-end.

It’s possible to educate your clients about why plain-language writing is preferred. It’s also possible to educate them respectfully and without sounding defensive. The key is understanding your client’s background and personality, and then striking the right tone when advocating for plain-language writing. There are no rules here, but I think that it’s perfectly acceptable to use the legal-writing authorities at your disposal to make the point. If the client still disagrees, then by all means add the legalese. They are the boss, and they are the ones who are paying for the work.

But like Mozart in Amadeus, where he is scolded by Emperor Joseph II for having “too many notes” in his opera, you should never shrink like a violet from defending plain-language writing and omitting the legalese and jargon. There is right and wrong. And on this point, you always will be right.

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