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A Monkey Rewrites Its Contract

 

We want to present our terms like any other content that’s meant for humans, not just for other attorneys.

- Valerie Danin, General Counsel for MailChimp

So begins a blog post at MailChimp, in which they describe how they have modified and updated their Terms and Policies. It’s a rather disappointing, if not unexpected observation – most people view a lawyer’s language as non-human. Off-putting and indecipherable, the average person avoids it like the plague. Especially Terms of Use and other policies that are a regular part of life. Software and services are so woven into out lives that I imagine that people agree to a new Terms of Service once a month. Every little app or webpage has it’s own terms and policies. It’s such a de facto part of life that people just click ok and skip over the Terms.

But Danin found this frustrating as the Terms and Policies govern the the relationship between MailChimp and its users. She wanted to find a way to make them more palatable for humans. But at the same time, she was cognizant that you can’t just abandon structured contract language.

Writing in plain language is hard for lawyers for a variety of reasons. Legalese is our habit and our security blanket. Now, bad habits must be broken, so just because wherefores, hereunders, represents, and shalls all run from my keyboard like LOL, ttyl, and OMG flow for others doesn’t mean I should use them. Particularly since more and more regulators are calling for easier to understand policies so consumers can make more informed choices. But as a lawyer, I feel safe when I use certain phrases, like “represent and warrant” for example, because when I use them I can be certain of what a court will adjudicate them to mean. In a common law system, like we have here in the U.S., we build law through case law, and there are hundreds of cases where two attorneys argued about what a specific term meant, and a judge then decided the answer. In light of that long judicial history, using legal terms is often safer.

Therein lies the problem. Desiring to make contract language more easily understood by a layperson is laudable, however, sometimes the law requires special terms and phrases that are hard to translate into plain language. Beyond that, the use of those phrases, and the case law behind them, is only going to be significant to lawyers. There is just no avoiding it. With this in mind, Danin and the design team at MailChimp set out to reform their Terms and Policies to make them more easily understood by regular people, while also making sure that they provide the legal protection MailChimp needs.

It went from this:

mailchimp Old terms of use

 

To this:

mailchimp new terms of use

To call it an improvement is an understatement. The language within the new Terms is also much simpler and common place. Mailchimp has also included “helper” text in the sidebar to assist people understanding legal specific language, identify items that might be confusing, or provide links to additional information:

mail chimpIndemnity

mailchimp compliance

As opposed to being blocks of small font/dense text, the Terms and Policies are now in a state that users might actually read them – which is a good thing.

MailChimp’s revision of their Terms and Policies is an excellent example of the use of plain language in legal writing. Next time you are going to be drafting a contract, take a look at it. Contract language does not have to remain stagnant. It can be improved and made more easily accessible to regular people. Kudos to Danin and MailChimp for making legal language easy for their customers to understand.

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About Keith Lee

I'm the founder and editor of Associate's Mind. I like to write, talk, and think about law, professional development, technology, and whatever else floats my boat. I practice law in Birmingham, AL.
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