Legal But Inscrutable Policy and Privacy Documents

[Baker, John]

        I found the Moreover link to work only some of the time.  The
Courant's long and unmanageable (but perhaps more reliable) link is

http://www.ctnow.com/scripts/editorial.dll?render=y&eetype=Article&eeid=4714
454&ck=&ver=3.0

        I am one of the lawyers preparing these privacy notices.  The
notices were required as part of a compromise with consumer advocates, who
insisted upon greater privacy protections in a 1999 restructuring of
financial services laws.  In the financial services community, at least, the
other new privacy rules have largely been well-received, but the requirement
to mail millions of privacy notices is seen as an expensive legislative
failure.  I suspect that most consumers see them as an annoyance rather than
a consumer protection.

        To the broader questions of Why do lawyers use legalese? and Why
don't lawyers write better? I offer the following answers, in order of
importance:

        1.      Lawyers don't write better because most lawyers aren't very
good writers.  This part of the problem is not restricted to lawyers.

        2.      The primary reason lawyers use legalese is to avoid
inadvertently changing meanings.  In a particular context, does "The issuer
will hold a diversified portfolio of securities" mean "The company will hold
both stocks and bonds"?  If I don't know, I can't tell you.  This may be an
issue either because the lawyer does not fully understand the original
language or because the original language is inherently ambiguous.

        3.      Many legal concepts require a level of precision to which
ordinary English is not well-suited.  The lawyer naturally will turn to
legal language in an effort to achieve greater precision.  Lay readers who
express annoyance at legalese in these contexts often are complaining in
reality about precise expression or about the underlying rules being
expressed; they feel more comfortable with the vague terms that serve us
most of the time in everyday life.  Of course, as suggested above, legal
language can also introduce ambiguities.

        4.      There are a variety of reasons why legalese may be easier to
write than plain English.  For example, if the lawyer is preparing an
80-page indenture, it will make more sense to mark up an old indenture than
to write a new one from scratch, even though the old document may be based
on a model decades old.

        Privacy notices are supposed to be clear, and every financial
institution I've dealt with wants to make them as clear and concise as
possible.  No matter how great the efforts at clarity, though, it's unlikely
that a consumer reading 10 or 20 lookalike privacy notices will think any of
them are well-written.

John Baker

> -----Original Message-----
> From: Grant Barrett [SMTP:gbarrett at WORLDNEWYORK.ORG]
> Sent: Tuesday, June 12, 2001 2:47 PM
> To:   ADS-L at LISTSERV.UGA.EDU
> Subject:      Legal But Inscrutable Policy and Privacy Documents
>
> Related to a recent discussion of legalese, this article from the Hartford
> Courant
> (with a Moreover link because the Courant's own links are long and
> unmanageable):
>
> http://c.moreover.com/click/here.pl?p20374481
>
> Households across the country are getting flooded with privacy statements
> from
> banks, insurers, brokers and credit card issuers, with some households
> getting as many as
> 30. One estimate puts the number of mailings at 1.6 trillion nationwide.
>
> The notices are required under the federal banking reform laws of 1999,
> which tore
> down the barriers between banks, insurers and brokerages, and must be
> mailed by July
> 1.
>
> Lawmakers included the provision requiring the notices because there was
> concern
> that giant financial conglomerates could compromise customer privacy by
> sharing big
> stockpiles of customer information with other companies for marketing.
>
> ...
>
> "Are you going to try to understand it when it's tortured English with
> double
> negatives, triple negatives," said Mark Hochhauser, a Minnesota consultant
> who helps
> companies make their literature understandable for consumers. "People are
> going to throw up
> their hands and say, 'Forget it.' "
>
> --
> Grant Barrett
> New York loves you back.
> http://www.worldnewyork.org/