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-    If asked, most clients will agree to using plain language in legal documents.
-    Sources such as can help with drafting in plain language.

Do you draft contracts and legal documents with user-friendly language? Since the 1990s there has been a move towards writing legal documents in plain language rather than in legalese. The tips below are mainly based on the ACC webcast “Crystal Clear Drafting: Less Legalese, More Meaning” delivered by Gene Barton, Greg Kaden and Allison Sherrier, Goulston & Storrs.

The US Securities and Exchange Commission issued A Plain English Handbook: How to Create Clear SEC Disclosure Documents in 1998, which requires the use of plain English in financial prospectuses. The US Congress enacted the Plain Writing Act of 2010, which requires “clear Government communication that the public can understand and use.” A good resource for plain language drafting is

Client considerations:

-    Ask clients if they would like plain language drafting. This will clarify their expectations.
-    E-mails to clients should be in plain language.
-    Seek feedback from the client after the first draft using plain language.
-    Determine if the client finds anything in the document confusing or unnecessary.
-    If the client seeks changes, keep track of the changes for consistency.

Drafting considerations:

-    Avoid duplicative words that confuse the reader.
-    Avoid using too many defined terms.
-    Define the parties’ standard of efforts. US courts have inconsistently interpreted terms such as “commercially reasonable efforts,” “best efforts” and “reasonable efforts.”
-    Definitions of “notice” and “prior notice” can be ambiguous. Check if the method of notice makes sense, is practical, and makes clear to the other party how to give notice.

Words and phrases to avoid or use with caution:

-    Avoid phrases such as “parties hereto” or “mutually agreed.” Agreements are mutual.
-    “Shall,” “will,” and “must” are not interchangeable. Use them consistently.
-    Only use “notwithstanding the foregoing” when there is an exception to a general rule.
-    Use “you” instead of “party.”
-    Don’t confuse these terms:
Indemnify” is to compensate for a loss, 
Defend” is the duty to provide a legal defense, 
Hold harmless” is to provide relief from liability.

Learn More:

Learn more in the ACC webcast “Crystal Clear Drafting: Less Legalese, More Meaning” 

ReadThe Power of Plain Language” by Sharon Stockman, Write Results, The Australian Corporate Lawyer, Autumn 2019, p. 40

ReadBoilerplate Blunders: 12 Mistakes to Avoid When Drafting Commercial Contracts” by Richelle E. Burr, Vice President, General Counsel, and Secretary of Photronics Inc. and Clyde W. Tinnen, Partner at  Foley and Lardner LLP, ACC Docket, October 2019, pp. 52-57

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The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.

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