Why Some Legal Documents Are Too Long and Why That is Harmful
Nov. 20, 2020
The 76-Page Con Job
Recently, I heard that a client of mine, who had moved out of state was told by an attorney there that he would have to have his trust redone since it was in written in another state. First off, that was a lie. A trust made in one state is just as valid in every state as it is in the state in which it was made. He was conned into paying to have it redone and he was surprised to see that it was 76 pages long, fully four times as long as the one I did for him. Since every one of the trusts I have written have done their job without a hitch, the question arises, why was this one so long? In fact, why are so many legal documents so overlong?
Why is it So Long?
Obviously, a legal document must cover the subject, including necessary definitions, covering contingencies, explaining the purpose, etc. That is fine. In documents as with communication in general, my philosophy is, “Say what you have to say and then shut up.” Why do so many lawyers add so much excess to their documents? Here are my theories.
It makes the client believe that he or she is getting more for his or her money.
Getting a big stack of papers seems more impressive than a small stack. The client is supposed to think that the attorney worked hard to produce it.
The truth is that, in general, the longer the document, the less input the attorney probably had in writing it. If it’s really long, it is likely a form the attorney got from someone else. Usually, when someone comes to my office with one of these epic trusts or wills, the paperwork looks familiar. It looks familiar because I have literally seen it before with only the names and a few details different. It’s a form, probably ordered from some company.
In contrast, every word in my trusts, wills and associated papers is there because I personally put it in there.
It is intimidating.
All that legal language is kind of scary. It is supposed to convince the clients that, if the clients cannot understand what it means but the attorney does, the attorney must be smarter than they are.
They don’t know any better
They are doing what their senior partner did or got it from some book of forms and they just go with that without asking if each provision is necessary or helpful.
Why this is Harmful to the Client
Clients Should Understand What They Are Signing
It is tough enough to read a concise legal document if you are not legally trained. It is practically impossible to do so when confronted with 76 pages of small type.
I have acquired a number of clients by deciphering long trusts done by other attorneys and explaining their meaning. Surprisingly often, the client’s reaction is, “That’s not what I want!” By keeping things concise and as close to normal language as possible, I am able to get my clients to read and understand what they are signing.
I send drafts of my documents to my clients. If they don’t understand something, I will explain it to them.
Clients Will Pay More to Have the Document Interpreted and Administered
The time is likely to come when a lawyer or several lawyers will try to figure out what the will, trust, contract, etc. actually says. Lawyer’s hourly fees basically start at around ten cents per second. At that rate, the fees for having a lawyer interpret a document by ploughing through pages of unnecessary verbiage to find the bits of necessary verbiage are going to be much higher than doing the same thing with a document that omits that excess.
Every word in a legal document is a chance for lawyers to make mischief
Since lawyers will twist every word they can to gain an advantage, it is vital that everything in a legal document is stated as concisely and distinctly as possible. If something does not need to be said, then don’t say it. The admonition that, “Anything you say can be used against you,” applies to legal documents.
Here's an example: A lot of wills have this provision: “I direct that all my just debts be paid.”
This provision is absolutely unnecessary. The law already provides that the estate will have to pay all lawful debts. The only possible effect of that provision is that it might cause the estate to pay a debt it would not have to pay otherwise.
Let’s suppose that the person who made a will with that provision borrowed money twenty years ago and stopped paying ten years ago. The lender or the lender’s successor cannot sue for payment because the four-year statute of limitations is long past. This means that because the lender did not sue within four years of the last payment, its claim is barred by the passage of time. The debt still exists but it is unenforceable.
However, the will directs the executor to pay all “just debts”.
The argument would be that, regardless of the statute of limitations, the debt is still a “just” debt even though it is unenforceable. The lender did loan the money and should be paid except for that legal technicality. Saying that the executor shall pay all “just” debts, if it means anything, means that all just debts are to be paid whether they are enforceable or not. On its face, that is a pretty solid argument. The only defenses I see would be to argue that the offending provision is just meaningless jibber jabber or that a debt that can’t be enforced because of a legal technicality is not a just debt.
I cannot say whether that argument would prevail at trial. However, if the amount is large enough, either the lender or the entity that currently holds the debt might find it worthwhile to try. That means litigation, legal expense, and possible payment of some or all that debt as a settlement or a judgment.
The legal opinions stated herein are general and do not necessarily apply to particular situations. If you have a specific legal problem, contact an attorney.
If you have a subject that you would like to have discussed in this blog, please contact me at (661) 269-3505, or email email@example.com.