Think of a Will as a Program You Can Only Test By Dying

Both legal documents and computer programs are written in a language that looks somewhat like English, but isn’t. You may recognize many words, but you are sadly mistaken if you think that fluency in English translates into LEGAL or COBOL.

The smallest “useful” computer program simply prints “Hello World!”. It does almost nothing, so most of the program is overhead. In C, it takes 53 characters of program to print 12 bytes of text – an overhead factor of 4.4.

I’ve been reading LEGAL this week, because some friends of mine are writing their will. I agreed to be the trustee in case both parents die while the kids are still young. It occurred to me that the “hello world” of wills is this:

Leave everything to my spouse. If s/he is dead, then split it evenly among my kids.

This is pretty much what my friends’ will said, but to express these 83 bytes of idea took 18,700 bytes of LEGAL, for an overhead factor of 225. That is, LEGAL is 51 times less efficient than C.

Why is LEGAL such a shitty language?

For starters, it doesn’t use modern techniques like subroutines or standard libraries. Consider this phrase from my friends’ will:

any and all household goods, furniture, furnishings, utensils and supplies, paintings, pictures, glass, silver, papers, rugs, china, books, linens, objects of art and other, similar articles of tangible personal property which I may own at the time of my death, any wearing apparel, jewelry and personal effects which I may then own and any interest which I may then possess in any automobiles

Wouldn’t it be easier to define ALL_MY_STUFF as a macro in a standard library? Instead, lawyers cut-and-paste big chunks of text from other legal documents. Part of the problem is that LEGAL was invented thousands of years ago, long before there were computers to help with mundane issues, like formatting and making sure that parenthesis match up properly. LEGAL would be so much easier to read if it used indentation and parens to make the structure clear, rather than subtle rules of comma placement.

In their defense, lawyers are legitimately afraid to make changes, because there is no way to debug or test a legal document. Think of a will as a program that you can only test by dying. If the program is wrong, your heirs could lose their inheritance, or they could be tied up for years in court.

When writing in a language that is impossible to test, it is only prudent to make the smallest change possible. When you see a complex, bizarre phrase in a legal document, there’s a good chance that it was added after somebody lost a legal battle. “Oops – we listed glass, china, silver and linens but we forgot to specify utensils. Also, let’s add ‘similar articles of tangible personal property’ just in case we missed anything else.” Imagine the outrage of the children cheated of their utensils! Once a phrase has been tested in court, no lawyer dare change it. As a result, the ancient heritage of LEGAL shows through. Chunks of text may have been copied thousands of times, over hundreds of years. You can even see bits of Latin sprinkled throughout.

Of course, there is one additional reason that legal documents are so long: Many lawyers are paid by the hour.

Comments

[Chris Betcher]

Dave, i stumbled across you blog from a link in another article somewhere. I really enjoyed this post... I will be sharing it with a lawyer friend of mine! I like your notion of the overhead factor...
Thanks for sharing it
Chris

[Lori]

God help us all if lawyers were paid by the word! LOL

[Daniel Holmes]

I just came across this book about LEGAL called "Party of the First Part". http://partyofthefirstpart.com/excerpt.html

Here's a snippet

At times, legalese appears to be almost willfully perverse. Standard legal agreements, for example, typically contain some version of the following clause:

The masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses.

In other words, the law sees absolutely no difference between "the boy becomes a man" and "girls will be girls."

[Mipe]

First of all, thanks for your thought-provoking blogs, they're a pleasure to follow. Then to the comment:

As a layman from outside the US, I have no practical understanding of the legal practices in the US courts. But what puzzles me in your example is why 'all' or 'everything' would not mean all or everything (owned by the person) also in the court of law? Has there been a case where the meaning of *all* was tested in court and it didn't hold?

Why wouldn't 'all my worldly possessions' mean just that?

[Henry Miller]

The problem is courts can do whatever they want. People have gone to court because of things like "He promissed me the china, and everything else to Joe".

So you specify the china separately beacause it tells the court you really did think of who gets the china, so the so called promise (if it was really made) is something you decided to break. When you say all it implies some carelessness. That is you didn't think about who would get the china in particular. When you specify the china it shows you thought about it.

The above has gone to court many times. As always, the lawyers have won, and everyone else lost. I'm not sure how often courts hold up that reasoning in, but it has been tried.

Most people are reasonably about who gets what. Sometimes families have faught it out. There are siblings who live in different states over who got the china.

[dmpk2k]

I just wanted to point out that lawyers do, in fact, have templates. All the hundreds or thousands of dollars you pay only gets you some minor alterations and a photocopy. It's rare to approach a law firm -- in an area they specialize in -- and they do not have a series of templates covering your issue.

That's one reason why Word Perfect was so popular among legal professionals for such a long time.

Also, as Henry Miller hints, law cases have been resolved over trivial things. I vaguely recall a case worth millions being decided over a single comma in the contract.

[SimonTeW]

I used to work in the IT dept of an international law firm, based in London. Every now and then there would be a seminar at lunch time to give us non-legal folks a bit of background information about how the legal industry works. One of the seminars was a basic introduction to the legal system of England and Wales (Scotland has a different legal system).

The solicitor giving the talk told us the reason English legal documents were so wordy wasn't that they were trying to cover all the bases and define everything. He said the real reason was that until recently solicitors in England got paid by the word for legal contracts!

[Alex]

It's a myth on being paid by the word.

The reason for old legal phrases is that they have a proven decided and established meaning in a court of law having already been argued on sometime in the previous centuries.

Any lawyer can use their own phrasing but any departure from the tested and true is risking not producing a document that does what the requirements asked.

Having studied law my biggest gripe about LEGAL being used is it requires professional interpretation. Which after all, for most people so does software source. Mind you I do think that the profession deliberately tries to exclude as many people as it can to help maintain a monopoly, on the other hand just like programmers not everyone would be up to doing the whole job, so there is some justification (but better alternatives to the approach taken).

[Ben]

Interesting. As former practicing attorney, I think the big problem with LEGAL, especially when used to develop Wills & Estates Applications, is that some users will exploit the Application to rob other users of output resources. Further, users get as competitive and emotional in the fight for those resources as a gamer, a root-kit hacker, or even a Firefox application developer, and the risk undertaken by the LEGAL developer is exponentially increased.

[Ben]

Allow me to play devil’s advocate. There are LEGAL terms that are, to use your apt characterization, defined as macros in standard libraries. Unfortunately, it is use of such macros that is the source of the layman’s most frequent complaint – the use of “legalese.” Hence the plea “why can’t you just spell that out in plain English?”

To illustrate, in your example:

“Leave everything to my spouse. If s/he is dead, then split everything among my kids” may be fine at age 35, but what about at age 85?

Imagine this scenario – the will’s author dies at age 85, years after her husband has died.
The couple had 4 children, each of whom had 2 children of their own.
One of the couple’s 4 children died before the will’s author.
Should the estate be divided equally between the 3 surviving children of the will’s author, with none to the 2 offspring of the 1 child of the author who predeceased her?
Was it truly the will author’s intention to disinherit those grandchildren unlucky enough to have had a parent (her child) die?
Likely not, but certain to occur in your example.
Yet if the 2 offspring of the predeceased child are to inherit, then in what proportion?
Should these 2 each inherit one-eighth (splitting the quarter interest of their deceased parent)? Or should these 2 stand equally with their aunts and uncles, inheriting one-fifth each?

Your proposed will is less “Hello world” than “hello litigation.” Resolution of the will author’s intent should this scenario occur may be had by adding one of two LEGAL macros to the end of your proposed will sentence – either “per stirpes” or “by representation” (giving one-eighth and one-fifth, respectively). These two simple and highly effective macros have been in use, roughly, since the Norman Conquest of England in the year 1066.

[Chui]

A Will => A Program
A Judge => The VM
The Law => OpCodes
New Laws, Precedents => Service Packs, ostensibly to fix bugs, but there are old programs which rely on buggy behaviour.

[Tracy R Reed]

If you like the idea of code being an analog of legalese you will almost certainly be interested in reading this paper in which options contracts are defined using the Haskell functional programming language:

"Composing contracts: an adventure in financial engineering"
http://research.microsoft.com/~simonpj/Papers/financial-contracts/contracts-icfp.htm

Apparently Microsoft actually does real research. I don't know why they don't play to this more!

[Tracy R Reed]

Oops...the website layout is obscuring my long url. Here it is again broken into two lines:

http://research.microsoft.com/~simonpj/Papers/
financial-contracts/contracts-icfp.htm

[connie]

What does "personal effects" mean in a will where jewlery and a grandfather clock were mentioned separately?

[Lee]

That's a great post! Several of my family members are lawyers and I'm a web developer. I laughed out loud several times!

[General]

All I can say is BOO!

Any result in this case is lose-lose-lose for NetApp, Sun and the community.

How about being more creative and innovative and looking to incorporate some of the good stuff that was open sourced with ZFS. This would be a win-win-win. It would help NetApp software, Give ZFS some cred, and it would help the open source community.

I guess you guys at NetApp just aren't very creative.. That's sad.

"LEGAL would be so much easier to read if it used indentation and parens to make the structure clear"

They do, legal contracts often have dozens of pages of definitions so once defined don't have to be again, just like a computer program. Also indentation is an obvious must with subparagraphs. LEGAL is actually much like C++, but more to #incldue

[TheJonas]

It is a myth that legalese provides any real protection. A myth perpetuated by- you guessed it- lawyers! The template hypothesis is largely true, as well as intentional obtuseness.

The problem, as with the "devil's advocate" example above, is- did you guess this one? Other lawyers!

In the given example, any person with any sort of rational thought process would immediately come to the conclusion that:

If one of four children pre-decedes the originator of the will, the whatever would have gone to him should then be distributed according the the child's will.

Some one will produce a retort to this. Any counter-argument will invariably be highly illogical, and/or be a direct result of a lawyer trying to intervene in an otherwise straightforward process.

[slz]

Fight back with a will in code or something:

//Your recursive brood will get a portion of your stuff. This ignores your parents, sorry.

int RecursiveChildrenCount(Person *node);
int RecursiveInherit(Person **childrenList, int AmountOfStuffPerChild, int AmountOfMoneyPerChild);
int DonateToCharity(Charity CharityName, int AmountOfStuff, int AmountOfMoney);

int PerformMyWill() {
Person *me = new Person(ME);
Person *my_spouse = new Person(WIFE);

if (my_spouse->Alive && my_spouse->IsMarriedTo(me)) {
my_spouse->Stuff += me->Stuff;
my_spouse->Money += me->Money;

return true;
} else {
//If you want you can check for her kids too but stepkids are ignored until 2.0
int divisor = RecursiveChildrenCount(me);

if (divisor) {
//Each kid will get this much of your crap, pointless to calculate at 1 but who cares
int StuffPer = (me->Stuff / divisor);
int MoneyPer = (me->Money / divisor);
return RecursiveInherit(me->Children, StuffPer, MoneyPer);
} else
return DonateToCharity(Charity::NoKillAnimalShelter, me->Stuff, me->Money);
}
}

Sorry for this, I'll go back to the nerdery...

[Thesmothete]

Indentation is extremely common in legal work. The United States Code Annotated (a bookshelf worth of the federal law of the United States) is many hundreds of pages longer than it might be, because it indents at each level of "subroutine". In some laws, the text is so far indented that it only inhabits the right hand of the page.

As a former programmer who now writes laws, I can say that the mental exercise is often quite similar indeed.

For example, there are laws that say:

Section 6789.

|Any person who knowingly:

____a) assaults,
____b) injures,
________i) when the injury does not cause death, and
________ii) when the injured person is not a federal law enforcement officer (as defined in
____________A) Section 1234 of Title 18, or
____________B) Section 890 of Title 42),
____c) impedes, or
____d) harasses

____a person lawfully present in a national wildlife refuge,

____shall be guilty of a Class II felony, and shall be subject to:
____a) a fine of no more than $100,000, or
____b) a term of imprisonment of no more than 2 years.

For purposes of this section,"national wildlife refuge" shall mean the interior of dave's house and associated structures.

Note how that would make much less sense if it were just written as a sentence.

Also note that I built in a mistake that would lead to a silly result. Can you find it?