One of my favorite artists and musicians from the 80’s was Don Henley, a founder and lead vocalist with the group, the Eagles. In 1989, Henley co-wrote a popular hit called “The End of the Innocence”. It is a melancholy ballad about a young man’s gripping encounter with the reality of grief and death over the loss of his father. One poignant line in the song goes: “When happily ever after fails, and we’ve been poisoned by these fairy tales. The lawyers dwell on small details.”
Contracts, wills, mortgage documents, insurance documents, prenuptial agreements, marital dissolution agreements, and the list goes on of documents that contain “small details” which lawyers must dwell on when representing their clients.
Whether we realize it or not, our world is filled with examples of legal terms and conditions that, if we took time to examine their content, many might find shocking. The next time you are scrolling down your Facebook page, pause and go the very bottom of the left column. There you will see in barely legible fine print the words: “Privacy – Terms”. Click on the word “Terms” and you will be instantly taken to over 100 pages of legal policies, platforms and conditions governing your use of Facebook. The surprising fact hidden among these terms is that whatever content you post, you forfeit to Facebook any intellectual property rights.
How is it we can run the country on a 16-page Constitution, yet it takes 2,074 pages and more than 400,000 words of gobbledygook to present the Senate Health Care Bill?
Essentially “the devil is in the details” is a warning that bad things can lurk in the specifics of a contract or agreement, and the client must be advised to approach them with caution.
Why do lawyers make documents so darn hard to read and understand? Why is there a need for so much legalese? Would not making legal language more straightforward help people better understand their rights and obligations? Why not scale down all of the mind-numbing “mumbo-jumbo” and replace it with simple, every day, understandable language?
Here is one explanation. When drafting complex legal documents, lawyers are not merely mincing legal-sounding words and phrases; they are trying to exercise a form of clairvoyance by anticipating every possible contingency or “what if’s”. This is particularly true when drafting wills and trusts. Seemingly insignificant words often carry a great deal of import. For example, take the legal phrase “per stirpes.” This is a Latin term you can include in your last will and testament to explain who will inherit your assets if one of your beneficiaries passes away before you do. With a per stirpes distribution, if one of your beneficiaries dies before you, their share of your estate will pass to their descendants, such as your grandchildren. If this phrase is omitted, then your beneficiary’s bequest will lapse, and pass instead to the other remaining heirs or beneficiaries.
There is a growing body of thought today that lawyers should strive to simplify legal documents and eliminate legal jargon so that it does not require a law degree to understand them. Thomas Jefferson said: “When the subject is strong, simplicity is the only way to treat it.”
The way we interact with the government, large corporations, involve many times the use of complex, legal documents. So, until the legal profession adapts to a simple, sensible redesign – and plain English – it is best to seek legal counsel before signing any legal document.
Larry L. Crain – www.crainlaw.legal