The Plain-Language Non-Compete

Originally published by Zach Wolfe.

Even if you’re not a lawyer, you’ve probably had some occasion to read court documents and come across stock phrases like this:

TO THE HONORABLE JUDGE OF SAID COURT

COMES NOW PLAINTIFF . . .

WHEREFORE, PREMISES CONSIDERED, PLAINTIFFS PRAYS . . .

And yes, they are usually in ALL CAPS.

You may have wondered if there is some legal purpose to these formalisms. The answer is no. Leaving these traditional incantations out of a court document would have zero legal effect. They are no more necessary than drafting a court document in Papyrus font.

So why do lawyers use them?

The most basic explanation is inertia. Lawyer like to use forms, forms often contain phrases like this, and lawyers don’t bother to change them.

But many attorneys include these phrases—and continue to include them—intentionally. (Associates, here’s an experiment: take these relics out of your next draft and see if the supervising partner puts them back in.)

I think insecurity is the main reason lawyers use these archaic phrases. The lawyer feels a need to “sound like a lawyer,” to show people “hey, I went to law school for three years and passed the bar.” The lawyer does not feel secure enough that the substance of his writing will accomplish this.

The irony is that when I see a lot of these empty formalisms in a court document, it has the opposite effect. It doesn’t make me think, “wow, this must be a really experienced lawyer.” Instead, I think to myself either “this guy relies too much on old forms” or even “this guy is kind of a lightweight.”

At a minimum, a document encrusted with these legal barnacles shows that the lawyer is not serious about good contemporary legal writing.

But let’s not get carried away

A couple caveats are appropriate. First, everyone has certain formal phrases they like to use in legal documents. I admit a fondness for putting “respectfully submitted” before the signature block, even though it has no legal effect and isn’t required. I see this as the equivalent of good manners, like saying “please” and “thank you” in polite conversation.

Second, there are certain ceremonial formalities that are worth observing for the sake of tradition and decorum, like saying “May it Please the Court” at the start of oral argument in an appellate court. We say things like this for the same reason that judges wear robes.

But many lawyers overdo the formalisms in legal documents, and for no good reason. If you leave out “TO THE HONORABLE JUDGE OF SAID COURT,” do you really think the judge is going to look at the document and say, “this lawyer doesn’t think I’m honorable, how dare he”?

And most authorities on contemporary legal writing agree that throat-clearing phrases like this are not only unnecessary, they are undesirable. I like what Wayne Schiess had to say about this here (and not just because he happened to be my first-year legal writing instructor at the University of Texas).

In short, if you care about good legal writing, eliminate the unnecessary ceremonial language, or keep it to a minimum.

Good legal writing and the “plain language” movement

But this gets to a more substantive question: what is it that makes good legal writing good? More pointedly, what makes bad legal writing bad?

Oh, let me count the ways. Schiess is helpful on this point as well. In this recent blog post he identifies some common flaws in weak legal writing. The main thing these flaws have in common is trying to sound more formal and “legal” than necessary.

This kind of legal writing has led to a reaction known as the “plain language” or “plain English” movement. Some judges, practitioners, and academics have advocated and practiced eliminating—or at least reducing—the “legalese” that plagues so much legal writing.

Overall, I’m on board with the plain language movement, which has several benefits and very little downside.

There are, of course, exceptions. When lawyers are writing to other lawyers, especially in their practice area, there are certain terms of art that would be awkward to translate into plain language. It would be silly to change “res judicata bars Plaintiff’s claims” to “the thing-already-decided doctrine bars Plaintiff’s claims.” Slavish devotion to “plain language” would make no more sense than blindly copying outmoded language from old forms.

And there is an even more important exception: when changing or deleting formal language would have a substantive legal effect. For example, a final judgment from a court typically ends with “All relief not expressly granted is denied.” That phrase has—or at least potentially has—a specific intended legal effect. It’s not merely an empty formalism, so you wouldn’t want to delete it just because it strikes you as unnecessary boilerplate.

The same is true of certain phrases that lawyers traditionally include in contracts. If you delete “Contractor has not relied on any representations not stated in this agreement,” thinking it’s unwarranted clutter, you just gave up something that could be significant in a later dispute.

This gets to the real test for plain language as applied to contracts: What difference does it make if a clause is written if legalese as long as it has the intended legal effect? Put another way, an “old-school” transactional lawyer might object that shifting to “plain language” is unnecessary, and even undesirable, because it places style over substance.

Point taken. But as a trial lawyer, I know that both substance and style matter. The style of a contract matters because that contract is going to be Exhibit 1 in a lawsuit, and you’re going to have to explain and defend the contract to a broad constituency: the witnesses, the judge, the jury, and even the opposing party.

Presenting the Plain-Language Non-Compete

I’ll use a non-compete agreement as an example, because it’s what I know best. I’ve seen a lot of non-competes, and most read like they were written with no regard for how they will be viewed in a subsequent lawsuit. Show me a lawyer who drafts a non-compete in impenetrable legalese, and I’ll show you a lawyer who never had to pin down an evasive witness about that non-compete in a deposition.

Somehow lawyers started to think that a non-compete is only enforceable if it’s contained in one long sentence in a block paragraph in small print that takes up at least half a page. And every key term—like “confidential information”—is a laundry list of “including-but-not-limited to’s,” rather than a single common-sense word.

But again, what does it matter, as long as the non-compete is legally effective?

It matters because in a lawsuit a lawyer will have to persuade a judge—and maybe even a jury—that the non-compete is reasonable and should be enforced. The plainer the meaning, the easier it will be to persuade.

A non-compete written in dense legalese, on the other hand, sends a not-entirely-subliminal message: this is one-sided boilerplate the employer’s lawyer wrote to screw the employee.

Ok, plain language is better in theory, you say. But is it possible? Can an effective non-compete be written in plain language?

There’s only one way to find out. As an experiment, I give you . . . the Plain-Language Non-Compete.

***MASSIVE LEGAL DISCLAIMER*** I offer the Plain-Language Non-Compete only for the purpose of discussion. I am not advising anyone to use it. And if you’re not a lawyer, don’t even think about using the Plain-Language Non-Compete without advice from a qualified lawyer.

Some of you will think the Plain-Language Non-Compete doesn’t sound “legal” enough. If so, please tell me which provisions you think are too “plain English” to be legally effective, and why.

Some of you may go the other way. You may think I haven’t gone “plain” enough. And I admit, even the Plain-Language Non-Compete has some technical clauses only a lawyer could love. So, if there is a section you think is unnecessary or would be worded more plainly, I’m all ears.

And if you want to understand the substance of what I have included and why, a good place to start is my very first blog post: What a Litigator Looks for in the Typical Texas Non-Compete.

WHEREFORE, PREMISES CONSIDERED, Five Minute Law respectfully submits to the Honorable Readers of Said Blog: the Plain-Language Non-Compete.

Govern yourselves accordingly.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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