Abstract: There is a burgeoning psycholinguistics literature documenting the various ways in which efficiency shapes human language. One domain where said efficiency has been attested to not apply is the legal system, as the language in contracts, statutes, and other legal documents is notoriously impenetrable to a typical lay person. Why? In Previous work, we sought to address this question from the comprehender side, documenting the cognitive and linguistic factors giving rise to the processing difficulties faced by non-lawyers when reading legal documents. Here we present ongoing work addressing this question from the producer side–that is, why do lawyers tend to write in such a convoluted way in the first place? Across two pre-registered experiments, we found that lawyers (n=211): (a) like laypeople, were less able to recall and comprehend legal content drafted in a complex “legalese” register than content of equivalent meaning drafted in a simplified register; and (b) rated simplified contracts as equally enforceable as legalese contracts, and preferable to legalese contracts on several dimensions–including overall quality, lawyerly competence, and likelihood of being signed by a client.

These findings undermine previous accounts of the cognitive origins of legalese, according to which lawyers either (a) prefer or are otherwise forced to write in a complex manner in order to satisfy communicative aims; or (b) do not realize they are writing in a complicated manner due to how easy it is for them to understand. These results instead suggest that convoluted language may be a byproduct of an iterative drafting process, in which exceptions and conditions are often thought of after the creation of an initial draft or template and are more easily embedded into the center of pre-existing sentences as opposed to being written out in a separate sentence. We discuss a proposed Experiment 3 to more directly test this hypothesis and discuss the implications of our results for broader questions of cognitive science, legal theory and policy.