Being an appendix is a tricky gig. At first, it may seem all cool not to have anything important to do. But if you spend enough time being blissfully unnecessary to the operation of the body, or you cause pain, you just might be sliced out of the torso and discarded like yesterday’s Kung Pao chicken. Exitus corpus.
Appendages aren’t limited to the physical body. There are societal appendages as well, like baton twirlers, kindergarten graduations, and the Vice Presidency. They serve no useful purpose, but haven’t faded away with time. Perhaps we keep them around has historical bookmarks, so the passage of time can be measured through methods more amusing than a ticking clock or flipping calendar pages.
Appendages abound in the legal world, too. Nowhere more prominently than in our language. Wherefores, Hereinafters, and Party-of-the-Second-Parts, which once dotted the plains and pleadings of the American legal landscape like so much pasture-devouring bison, are disappearing rapidly in the wake of the Plain English movement. But they aren’t on the endangered species list yet. I occasionally still see a clerk or lawyer use the phrase “Executrix,” a Victorian-era term for a female executor of one’s estate, even though I learned in law school around [*cough*] years ago that this term was already probably sexist and certainly antiquated.
But legal linguistic appendages encompass more than just the never-say-die aged variety. Lawyers also love their redundancies. And they love re-stating things. And they like repeating themselves. And they enjoy saying the same thing more than once. This might be useful on occasion, or with contracts covering such vast human interaction that the difference between “rent” and “lease payment” matters, but lawyers have trouble choosing one and the redundancies often result from a “better safe than sorry” attitude toward contracts and pleadings. Still, that’s little comfort for the bogged-down reader.
Illustrating the wonderful absurdities birthed by bad legal writing, the Norwegian Consumer Council (Motto: Fighting Swede Greed Since 1978!) recently conducted a live public reading of the Terms & Conditions of Norway’s 33 most popular smart phone apps as part of its #appfail campaign. If you want to challenge your own attention span, you can watch video of the event. The entire reading clocked in at just over 31 hours 49 Minutes. Even accounting for the length of words in Norwegian–a language which seamlessly mixes Klingon, an IKEA catalog, and chemical symbols for rare earth metals–that’s a lot of reading.
Of course, the point is that most of us don’t read Terms & Conditions. We ignore them, and tech companies know we ignore them. The result is the gradual loss–albeit voluntarily–of our data and privacy. Like all unacceptable, unwanted, or unneeded appendages, marathon-length Terms & Conditions will only be cut out and discarded when their costs outweigh their benefits. Right now, the world loves its smartphone apps, so the benefits are significant.
Time will tell whether the Council’s attempts to embarrass the tech industry (and by association, the legal industry) into developing easier-to-read Terms and Conditions will have lasting change. But the Council stresses 5 common sense ways that terms and conditions could improve:
1. Cut back on the obvious;
2. Write so that people understand;
3. Keep it short and concise;
4. Structure the text (to highlight important elements); and
5. Adopt an industry standard.
Let’s hope that all types of legal writing, not just the App Store variety, learn to follow these examples.