The Ins and Outs of Legalese - Husein Panju

Made with speech-to-text software, so a few words may be off.

0:00Welcome to another episode of Contract Heroes, the show where our guests, and sometimes us, provide best practice recommendations on all things related to contract management. Hello, everyone, and welcome to another episode of Contract Heroes, where we're not the heroes, our guests are. Uh, today on the show we've got a- another podcast host, uh, Hussein Panju. And, uh, before we dive into what we're gonna be discussing today and, uh, Pepe gives you a little bit more background, wanna flip things over to Hussein, uh, so we can get a, a little bit more information on, uh, maybe on his podcast as well as, um, what his background is. So, Hussein, welcome. Yeah, thanks very much for having me. It's the first time I've been a, a hero on a podcast. That's very nice, uh, nice of you to have me.

0:59Um, yeah, so happy to tell you a little bit about myself. Uh, so I'm a litigator and a podcast host from Toronto, Canada. I'm practicing for about 10 years. Um, and I've had a mix of jobs. For the first five years of my career I mostly advised and litigated on behalf of all three levels of Canadian government. Um, and then after that I served for three years in a dual role at one of Canada's top public affairs consulting firms. Uh, so in that role, part of my job was I was a consultant in the firm's property development practice. Um, and the other part of my role was I managed the firm's internal legal affairs through, uh, commercial drafting and risk management and some compliance initiatives as well. And my current role, my current day job, is I am a legal counsel, um, at the Ontario Motor Vehicle Industry Council. Uh, we're a consumer protection body and, uh, the provincial regulator for the car sales sector.

1:59Um, and so I mostly litigate matters, uh, in that respect. Um, and then I have a few o- other initiatives on the side, but maybe most relevant to your listeners is I also host and produce my own podcast series called Lawyered. Um, and it's a show where I interview top Canadian lawyers, uh, we take a critical look at current legal issues. Um, so yeah, nice, nice to be on, on the show and on the other side of the, the table for a change. Thanks a lot, Hussein. And well, this is, this is a topic that I, I, I really love, that I think that we're going to talk, uh, in this, in this podcast, and it's contract design. And I think, Hussein, you have a lot of experience on this because, uh, we, we talk about this in one of our earliest, uh, episodes here in Contract Heroes, but not just on the contract design per se, but the content of the agreements. Because as you know, or as everybody knows, nobody understands a lawyer.

2:58We, we just love to use very complicated terms, and it's, uh, and I think wh- lawyers that write articles or, or, or, or texts, it's just so complicated. But, but when you put all that information inside a contract, there's another problem, that is that people besides lawyers cannot understand what they're talking about inside the agreement, and they always need the assistance of a lawyer to understand what they're agreeing on. So in your experience, Hussein, what do you think, uh, what is the problem with using legalese? Yeah. I think it's a great place to start. I'll, I'll just kind of preface by saying that this is an area that I've been working in and thinking about for a long time. And, you know, as you talked about in the introduction, I've, I created my own podcast about Canadian legal issues. Uh, and the main reason that I started this was because I wanted to do what I call, like, declutter the law.

3:51Uh, because part of the problem is I think we've been conditioned as legal professionals to use words that are hard to understand, and follow rules that are hard to read, and to interpret court decisions that are hard to follow. So on, on, on my show I take a special effort to ensure that the subject matter is understandable for lawyers and non-lawyers as well. And that doesn't necessarily mean that we dumb down the content. Um, on, uh, you know, on the show we talk about a lot of substantive issues, you know, things like net neutrality and affordable housing policy. Um, but I structure the content, the questions in a way that begins with basic concepts and then slowly guides the listener into more complex areas. And I'm not the only one who, who approaches legal analysis in this way, but I think that this approach, uh, is a really important step towards access to justice. And in terms of this problem, I think that whether we intend it or not, so much of the way that lawyers and legal professionals use language is coded in what we call legalese.

4:54So I think a lot of people can relate to the stereotype of, you know, someone reading a complicated contract and it's filled with all this archaic language, so there's heretofore and wherein mentioned and all these L- Latin phrases. And I think that this confusion makes it really challenging for lawyers to explain exactly how the law is evolving to their clients, and even harder for non-lawyers to understand it. And I think that one of the biggest dangers when we're talking about language is you rarely know whether you're being understood or misunderstood until it's too late. Uh, and this confusion can have practical impacts on, on businesses and the relationships with their other parties as well. Um, and I think that the im- it's really important from a access to justice perspective for people to have a basic understanding of how the law is impacting them in a way that's, you know, understandable and not coded in this legalese. Right. I remember one of, uh, like a couple of weeks ago, TikToker Alex Su made a, made a video when, when, when he was, uh, just imitating a lawyer. This language is- For protecting your life, your, your rights.

6:07Like notwithstanding the aforementioned and a lot of terms that we just make no sense. Why do you put them there? And I think, uh, I don't know why I think people think it's the best way in order to protect your rights or protect your clients or customer rights, but what do you think lawyers are so fixed about using legalese? Yeah. So I- it's a good question. I think that, you know, I, I don't have the definitive answer, but I have some theories about why this is the case. I think that we've made some improvements in recent years, but the law is very, it's still a very traditional and hierarchical profession with very high barriers of entry. And at its most basic level, legal professionals are there to decipher and manage incredibly complex topics. So I think that there, there may be some self-preservation at play, and even if it's unconsciously, in having this language coded in this complex manner.

7:03Um, I think also that this language can be, when it's complex and you have, you have these really dense paragraphs, it can be intimidating to a lot of people. I think that some people know this and weaponize it to their advantage, and I think that it's just, um, what, what somebody called a, a prior art principle. So that's the way that we've al- always done it before, using these same terms and, you know, archaic phrases. And so, uh, this momentum seems to perpetuate itself over time. So these are at least some of the, the, the causes that I think are, are relevant here in terms of why we use this, this legalese so much. Yeah. And Hussein, I, I think that, you know, especially in the corporate world where, um, for the most part, uh, you know, up until recent years, I think that the legal team has kind of stood apart from other departments and, and hasn't really worked as closely as, as they do now. Um, you know, we're, we're trying to, to make sure that these teams are sticking together, that lawyers and sales teams are working more, uh, incorporated together.

8:05Uh, but in the past, uh, I think there was some butting heads and, and lawyers wanted to show that they were maybe the smartest department that was out there, and I think that that's another reason that, you know, this language, uh, got used and, and was used. And if we've... you know, know anything about legal departments, it's that they, they do get stuck in their ways and, and they like to stick to tradition. So, um, I think that that's something else to consider and, and, you know, just digging into that even a little bit further. But, but yeah, no, some great points there and, and, uh, I think we definitely, we definitely agree here. And I should probably be, uh, be careful with what I say too because, uh, I'm kind of outnumbered here, two lawyers to, uh- ... to one non-lawyer. We'll, we'll make it accessible. Don't worry. No, but, but you're right. A- and the thing is that, well, what you said, Marc, about bringing the teams together with the legal team, and I think that's al- also a thing about efficiency because the legal de- departments, they're not like big departments, right? They are, like, maybe a big department would be, like, 10 lawyers in a massive company and, but there, but there are more or less, like, five, six person mostly on the, in charge of the legal department inside that company.

9:12And when they need to deal with the contract with all the rest of the departments, marketing, sales, uh, procurement, or any other department, if they need to assist all of them to understand what that contract sa- says, it's not just going to be unefficient inside the company but also within the negotiations because most of the time, the people that are negotia- negotiating the commercial parts of an agreement are non-lawyers. S- sales people, uh, procurement people, and if they need the assistance of a lawyer, what happens is that they need to hire an external consultant, namely a law firm, and they charge by time billing, by hour, and that's also, uh, a thing that you have to consider because, uh, legal teams have a very strict budget. Right. Right.

10:02And Hussein, I mean, w- how do you suggest that these organizat- organizations go about maybe trying to simplify this language so that it is easier to understand for these other departments and, and can make collaboration, uh, move, move, move a little bit smoother? So I think that one of the important steps is for legal teams to rethink the way that they use their precedents and their boilerplate contracts. So I've had the opportunity to work in-house for a number of organizations with, um, varying sizes of legal teams. Some legal teams were, you know, maybe one or two lawyers, and some of the bigger teams in government were, you know, in the hundreds sometimes. And, you know, I've been often asked to prepare some standard agreements, whether it's a retainer agreement or a development agreement, and typically, and, you know, most legal teams will have a precedent or a template ready, and you're expected to, to use that. Uh, and s- you know, these are usually documents that have been reviewed over time, but sometimes simply don't hold up over the long term because resource needs change, or the industry changes, or there are just other business changes as well.

11:08Um, and sometimes, you know, I've encountered a situation where our own staff have very basic questions about what these terms mean in our, our template contracts. So I think that one of the main tips I would suggest would be for teams to not be afraid to put in the hard work to challenge and update their basic templates on a routine basis. You know, every agreement's gonna be different, but an approach I try to take is if someone, like, is gonna read this agreement in 10 or 20 years from now and they weren't involved in this transaction, is it obvious to them or will it be obvious to them what that agreement is and why it was written? Uh, and if not, maybe it needs some work. So s- some, some practices that I find helpful, and I don't, I don't know if m- many of these are novel, but one is to use recitals very effectively. So at the beginning of the contract, you know, they'll typically have these whereas statements and, you know, depending on your jurisdiction, they may or may not have, um, legal weight, but they can at least give context into what's happening here.

12:10Why is this contract even entered into? Uh, I think another big thing would be for, I think lawyers- And I include myself. They sometimes get very excited and try to ta- pack as much as they can into one sentence, and that often compromises the clarity. So, you know, I, I would try to keep it to, you know, one or a couple points per sentence and break it up if necessary. Uh, one of the, the big tips that, that I think goes back to our earlier discussion o- on today's show is to use words that humans use. So instead of using, you know, sufficient, you can probably use the word enough. It's, it's pretty much the same thing. And, you know, instead of saying thereafter, you can just say after. Uh, and, you know, these things may sound basic and small, but when they're done repetitively over the course of an agreement or a document, the, the overall effect is a very legally defensive agreement that, that can hold up over time. Um, and, you know, another thing is you can have these magic words, like, for clarity. So you have an idea, and maybe it's a bit complex, and then specifically clarify it afterwards.

13:21Uh, and, you know, doing a routine review of, of your agreements is cumbersome, and it does take time, and it can be frustrating. But I always tell, like, you know what always is cumbersome and frustrating? You know, being a non-lawyer and trying to decipher what these terms mean, you know, well after the fact, or being in a li- a litigation matter where these terms become the core of what was, you know, the legal meaning between these parties. So I think taken together, these strategies can help to streamline the use of language to make things easier for everybody involved. Right. And I've seen there's a, I, I wouldn't say a trend because this is something that's still happening all around the world, but there's few associations, such as the World Commerce and Contracting, that they are launching new, uh, programs such as the contract design simplification. And what they do is that you have to think about the user, a user design of your, of your contracts.

14:16Because maybe the people that you sign a contract, they don't understand what you're talking about, and maybe you're, uh, you're, it's going to be a labor agreement. And maybe the person in charge, uh, they are, they... It's, it's not that they are not, not, not professional enough, but they are not just used to this kind of language, and especially when you write sentences of full paragraph sentences, right? And, and, and they just keep going round and round and round because they want to keep all the risk apart. And maybe other kind of, well, you are working on the, on, on the vehicle industry, right? If you want to buy a new car, maybe the insurance certificates, they are super complex. I still don't understand them and I'm a lawyer, and I think that there's a lot of things that needs to be worked on in order to make the law more accessible. And I think also, this is going to my question, and I, I think, well, in my experience, most of the time the people that make the more complex, uh, contracts are transactional lawyers, especially the, on the, on the private practice because they're thinking about just the risks.

15:27They want to try to mitigate the risks for their customers, and that's why they write super complex agreements. But they're not thinking about all the rest of the contract life cycle. What happens when the sales department needs to negotiate those kind of agreements or the procurement? So how do you think that transactional lawyers can help in order to make the law more accessible? Yeah. So I think that, uh, you, you raised a excellent point about, you know, UX and identifying who the user will be. I think that, you know, one strategy that might help would be identify who all the users of these agreements will be. You know, not just your clients, whether you're in-house, but also the consumers as well. Identify, you know, who are your consumers. Are they sophisticated? Are they, you know, individuals? Are they, do they have, you know, unique abilities or disabilities that may impact their way of understanding this, this information?

16:24I think these questions are all really important because you're right, Pepe, that the legal risk can be quite high. But I d- I think that there's sometimes this, you know, false dichotomy, uh, or, you know, people think that you can either be, you know, precise or clear, but not both. But I think, you know, it may take a few extra steps, but I think if you can start with, you know, basic concepts and build outwards, you can convey complex ideas in, in ways that are fairly simple. Uh, but I think it takes an understanding of who you're, who's gonna be using this agreement. Because I think that for businesses as well, you know, when we can all relate to these really long, you know, terms and conditions that you see online, and f- obviously not, not everyone reads them. But I think that it can build a lot of trust between consumers and businesses when you have something that's very clear and transparent.

17:19I think that, that, those types of agreements can foster a strong relationship between the consumers and the business. And if you're advising the business, I think this is a really important strategy that can actually, you know, result in revenue generation b- while also maintaining your legal risk at a, at a reasonable rate. Um, and I think that, like with a lot of these processes, like, they're not, you know, a snap decision that you can do overnight. They take a lot of time. It requires, you know, a few drafts, and you have to run them by different departments. But I, I've seen from my own experience that this, actually when it's been done well, can be really streamlined for everyone, uh, within the organization and for, you know, the parties that you're working with as well. Great. Well, I think part of this answer and, uh, and this situation is what happens when things are okay and we're just in the middle of the negotiation for a new commercial relationship. But when shit hits the fan and you need to go to a trial, you need to involve another kind of lawyers, which are the litigators.

18:24In your experience, Hussein, and also as a litigator, what- how do you think that litigation lawyers can help also to make the law more accessible? Yeah. So I think in the advocacy context, this simplicity is especially important, or at least as important, but in different ways. You know, these are occasions where you're dealing with adjudicators who may or may not be legally trained, and sometimes self-represented parties as well. So in these scenarios, it's important that the language be precise and clear to ensure that everyone's on the same page. Uh, and so in my current role, I've found, you know, you know, visuals to be very, uh, helpful, especially in this virtual context of hearings. So I'll preface this by saying that, you know, lawyers or whoever's listening should re- view the rules of procedure for their respective court or tribunal, 'cause there may be different rules about disclosure and whatnot. But in my line of work, I've typically created, you know, very simple PowerPoint slides to supplement, not replace, but to supplement my, my verbal argumentation in my opening, um, and/or my closing submissions.

19:31And I find it's been a very helpful way, um, to show this. You know, it's kind of hard to show 'cause we're on an audio platform right now, but if you have a case where, let's say, the evidence takes place over several years, and the dates are really important as well. Well, one thing you can do is to create a visual timeline to literally show what happened different points in time. Or, you know, maybe if you have, uh, you have your conclusion of your case and you have, you know, four main arguments, but my third argument has two different scenarios, and my fourth argument has three. Well, I think most people would rather see some kind of a chart or a graphic to make them understand it, you know, a lot easier. And you can do fancy things with colors and fonts if you, if you want to, but I think just seeing these visually, um, is really compelling. 'Cause a lot of us are visual learners. Um, and in a hearing context where there's so much going on, you know, the, the adjudicator, you know, sometimes, you know, may have too much pride or, might feel uncomfortable saying, you know, "I- can you, can you slow down?

20:34I don't understand." But if you can go the extra step to supplement your, your verbal language with, you know, graphical supplements or graphical aids, it can ensure that they're on the same page. Um, and e- especially when you're dealing with a litigation context, it can also ensure that the other side is really engaging with your arguments in the way that you're intending. So, you know, cutting out the legal, the legalese, um, and really bringing it down to what is the argument that you're trying to make, and what is the clearest way that you can present them in a way that's understandable for all the parties involved. So I don't think that, you know, language is limited to just the words you use. I think there's a lot of other tools you can use to, you know, convey your language in a way that's successful, uh, to, to all the parties that are involved in the dispute. And, and Hussein, I mean, you n- you know, now that we touched on, you know, some other tools that, that are out there, I mean, what, what are those tools that you think, you know, others can leverage to, to help, um, simplify this language and get their points across maybe a little bit easier?

21:41Yeah. So some of them are what I mentioned. I think the visual aids are a really helpful thing that, that I've used. Uh, one of the other, you know, software I use, you know, um, uh, they're not a sponsor or anything that I'm involved with, but there's a tool called Grammarly that I use very frequently. Um, it's a, it's a so- I think it's a free software with maybe add-ons you can pay for. Uh, but it's kind of an advanced version of the Microsoft, you know, Word spellcheck or thesaurus. Will, it will, you know, literally suggest ways you can make your language clearer- Mm-hmm... um, as you're writing, and of course you do the basic grammar and such. So I found that to be a helpful way to, you know, ensure that as you're drafting, whether it's an email or a contract, that you're, you're putting your best foot forward in the way that you're, you're advocating, um, and, and speaking to others. And I think another tool that people, you know, have at their disposal are just their other colleagues.

22:33So, you know, if you're working on, you know, a contract or a draft submission, if you're the one that's reading it over and over, sometimes you kinda get, you know, blind to some of the, the errors or the, the issues that may be not as apparent to, to people who are not as familiar. So I always encourage people to, you know, if they have the opportunity to, to run it by a, a, a friend or a colleague who's maybe not as close to the issue, and ask them, you know, "I- if you were to hear this, does this make sense to you?" And, you know, tell, you know, tell them, you know, "Check your pride and let me know, let me know when you are confused, and then I will adapt my, my draft to respond to that." Uh, so I think that those are just some tools that, that I use that I found to be effective. Um, and a lot of this is just, you know, iteration time over time. You know, these are not necessarily intuitive skills that we use, but by practicing this on a regular basis, you know, not just in our contracts or in our submissions, but also in the way that we speak casually with colleagues or, you know, draft emails or even texts.

23:40You know, th- there's a lot of ways that we communicate in our everyday lives that I think can translate effectively in the way that we are, can be clearer as, as lawyers and advocates as well. Mm-hmm. Right. So Hussein, you know, lawyers are not very fast by adopting new technology sometimes, and, and also to change this state of mind or keep using the same language m- m- might not be something that, that will happen in the, in the short term. But I think this is a problem that needs to be, uh, solved as soon as possible. And have you seen any kind of consulting services or maybe the new alternative legal service providers that works on these kind of projects, like how they can simplify the agreements so they are more accessible to non-lawyers? It's a good question. So, so to be c- candid, I don't know if there's any providers that are out there. I would imagine that there would be.

24:39You know, I know that there's some linguists that are very active in the legal space. Um, and there's, you know, a lot of literature that's been produced already about, you know, legalese and these sorts of things. Uh, I know that there are... I can't, um, think of the names off the top of my head, but I know that there's some firms that, you know, specialize in, you know, um, you know, contract streamlining. You know, maybe similar to some of the softwares that, that you two are familiar with. Uh, and so I think that there's some specialized services, but I think a lot of the skill, the, the tools that are required are things that are fairly commonplace, but I think just a matter of implementing them and, you know, as you, as you mentioned, you know, lawyers or the, the legal profession is notoriously traditional. So I think it takes, you know, some incremental change over time.

25:27So maybe you're not, you know, uh, overhauling your legal templates tomorrow, but maybe you're starting small and, you know, with some basic, you know, clauses and paragraphs, um, and then showing some proof of concept of the superiors and management to say, you know, "Isn't this, isn't this clear? Why don't we try more of this?" You know, u- le- in the litigation context, you may have a bit more flexibility depending on, you know, your resources. But I think that it's a matter of showing to the people or the, the powers that be that these tools can be effective and, and adapting the language. And I think that th- there's, you know... I, I talk a lot about how this is important from access to justice perspective, and I think that's true, but I think from a business perspective, that's, that's true as well. You know, having clearer language, you know, typically is more favorable to clients, you know?

26:20You know, if we divorce ourselves from lawyers for a moment, you know, if you go to a doctor and you don't understand anything that they're saying, um, you know, it, it kind of dampens the relationship between the, the two of you. But if you go to a doctor or other professional and they're very clear and they w- take the time to walk you through what the problem is and what the solution is, I think that the, these are the types of, you know, professional relationships that tend to sustain over the long term. So I think that in a legal context, the, the same principles apply. Yeah. Yeah, I agree. And, and, you know, I think, I m- I mean, Pepe, you know, we had Dennis, uh, Potemkin on the show, uh, on our first episode, and, and, uh, Hussein, he's actually somebody who, who does specialize in, in that, um, simplifying the legal language and, and helping organizations do that before they go out there and find technology. So, uh, Dennis, if you're listening, that was a great episode. Go check that one out. Um, but, uh, but Hussein, hey, we really appreciate you coming on.

27:14And, um, you know, if, if folks wanna connect with you or, or learn more about the Lawyered podcast, uh, where can they go to do so? Yeah. Thank you. So, um, my podcast is called Lawyered, so, uh, there's a website called lawyeredpodcast.com. That's L-A-W-Y-E-R-E-D podcast dot com. I'm also at Twitter @lawyeredpodcast. I'm also on, uh, most, uh, podcast platforms. So however you're listening to this, you can probably type in Lawyered and, and find my podcast there. Awesome. Hey, well, we really appreciate you coming on, and thanks everybody for listening to another episode of Contract Heroes. We hope to have you back here soon. Great. Thanks, bye guys. Sure thing. Take care. Thanks.