Legalese/ Traditional legal language v. Plain English

[chrissy]

ok so im taking this subject for 2nd year, Legal Writing and Drafting and i want to argue my essay based on the view that keeping with tradition and keeping legalese is actually more beneficial than resorting to plain language, which may prima facie seem like an adequate solution but it really isnt (i was reading an article by Robyn Penman who put forward the notion that simple words dont necessarily equal understanding and that what is needed is an actual revamp of communication and realising that different ppl understand differently).

anyway, i need an original argument, im sort of starting to formulate one on the line of what she was saying, as well as on the line that if we are to resort to Plain English, (which the public can read better than law documents, but which as mentioned before, doesnt equate to better understanding), certain legal concepts may be "lost in translation", and because some concepts of law will take more words to explain in Plain English, thus boring the reader which gives up after two sentences, law will lose its essence. not to mention the legal profession going down the drain and not to mention the fact that this will lead to more ambiguity for certain words (although this is not empirically founded)

^^ the above is what i can come up with so far. id appreciate any input, as i really wanna develop the above ideas, so if you have anything to comment on that ive already mentioned or if you have something new to add, please by all means do so.

if you are involved in the legal system
do you use traditional legalese? (this may only apply if you happen to draft documents or work in a law firm)
how much easier is it to write in legalese than in plain english and would you bother to do so for a client/general public's benefit?
do you 'pride' youself in being able to talk the talk not many can talk?
please add any other comments you may have.

if you are not involved in the system, i want to hear from you too.
have you ever come across legal documents you could not understand? how long did it take you to read this document before you made sense of it? did you have to ask a professional for interpretation?
do you have trouble comprehending easily READ language at times? does it seem hard to understand?
please add any other comments you may have.

thanks for reading. im sure this is a valid concept, even if you despise the system or arent involved in it, etc etc. because it DOES concern you, because you need to be able to know what the law is so as to act in accordance with it and if you cannot comprehend that law, problems arise. please think outside the square with your replies, dont think of it as a general application to you- ie. if you know of instances where ppl favour one over the other please say so.

thanks again!

 

[Banquo]

In legal writing, there has been a move away from legalese to regular English in the last century. Still, legal writing is essentially technical writing so that does not mean that it will necessarily become easier to read. There are many terms of art and concepts which are crucial to understanding legal writing, and given that these terms will mean something else to a lawyer or legal secretary than to the layman, one can never hope that legal writing will be totally accessible to the layman.

Personally, I think that arguing that the shift from legalese to plainer English is beneficial would be easier. However, off the top of my head, some of the potential undesirable effects of the shift away from more traditional writing...

- in property law, one of the oldest areas of the law, much of the formal language inherited from feudal England has been replaced by simpler language. Consequently, in areas like real estate, where formerly a legal professional was needed for certain sales transactions, a realtor can now legally fulfill many of the necessary duties (depending on the state). This is bad because realtors are not well versed in legal issues that might arise peripheral to a sale. Whereas, formerly, the presence of a lawyer would ensure a smoother transaction if any of these issues should arise.

- Lack of continuity. The common law is based on events and legal decisions which have occurred in the past. These events are captured in writing. With the language and writing style evolving from its more traditional roots, how can we hope to hold on to concepts for which there is no translation? Suddenly, it has become more difficult for today's legal professionals to look at decisions and legal writings that are older than 100 years old. Consequently, the understanding of the law and its roots suffers.

 

[chrissy]

In legal writing, there has been a move away from legalese to regular English in the last century. Still, legal writing is essentially technical writing so that does not mean that it will necessarily become easier to read. There are many terms of art and concepts which are crucial to understanding legal writing, and given that these terms will mean something else to a lawyer or legal secretary than to the layman, one can never hope that legal writing will be totally accessible to the layman.

yes, i guess it's a matter of degrees. it's a matter of what every person understands and that is the variable. we can possibly inch closer to allowing the layman to comprehend totally, but we can probably never come full circle. maybe, one day. but....

Personally, I think that arguing that the shift from legalese to plainer English is beneficial would be easier.

yes, well a few ppl told me the same thing. some people believe in the argument, others are doing it because of the obvious bias the lecturer has towards this notion (which makes my job harder). but upon ponderance, have decided not to conform, not to merely restate and regurgitate what the lecturer has taught thus far. i dont want to write about some facet im not really interested in just to obtain a mark... were lies the challenge in that?

- in property law, one of the oldest areas of the law, much of the formal language inherited from feudal England has been replaced by simpler language. Consequently, in areas like real estate, where formerly a legal professional was needed for certain sales transactions, a realtor can now legally fulfill many of the necessary duties (depending on the state). This is bad because realtors are not well versed in legal issues that might arise peripheral to a sale. Whereas, formerly, the presence of a lawyer would ensure a smoother transaction if any of these issues should arise.

EXCELLENT point, and one i am interested to look further into. thanks

- Lack of continuity. The common law is based on events and legal decisions which have occurred in the past. These events are captured in writing. With the language and writing style evolving from its more traditional roots, how can we hope to hold on to concepts for which there is no translation? Suddenly, it has become more difficult for today's legal professionals to look at decisions and legal writings that are older than 100 years old. Consequently, the understanding of the law and its roots suffers.

another excellent point. basiclly Occam's Razor, right? oversimplification which leads to loss of meaning... hmm. second-last sentence makes sense... also ties together with a time factor... how long would it take someone to translate ALLLLL the law and concepts there is? and.. if Australia does it, will the World follow suit? implications for dealings with other countries, if one country is accustomed to legalese and the other with plain English. im sure im taking things out of proportion.. u got me thinking..
thanks a lot! please feel free to add anything else if it pops up, ur very valuable!!!

 

[kappadaftie]

I think a move to plain english is a nice notion, but is very limited in real application.

In the field of criminal law, ignorance of the law is no defence to it, which means that every citizen is supposed to be aware of every single law. What is a defence though, is where the law in question is not clear, for example how is a normal citizen supposed to understand a vastly complex statute written entirely in language they do not comprehend. For this reason many legislative drafters, under the direction of parliament, have made a move to towards plainer English.

But its not that simple. There is a very legitimate reason for using Latin for example. Latin is a dead language, ie the meanings of its words and phrases will never change. English is not a dead language, for example take the meaning of the word gay over the last 30 years. Translating all the latin principles would also lead to massive problems in interpretation, a job which the judiciary do not have time to deal with. As it currently stands, we have taken years to reach the current interpretative undestanding of most legal principles, why throw a spanner in the works be changing it all around. Defence lawyers in all legal areas would have a field day with all the new holes appearing after the rewrite.

I agree that in some areas of law, it would be very beneficial to have 'layman friendly' statutes and documents. The fields o human rights law, family law and tax law could certainly do with a little tidy up to make them more accesible to the people that require them the most.

When i finished my first law degree, I had studied the feudal tenure system of land ownership in Scotland (which still existed at that time). This was a very old system which relied on legal jargon which was hundereds of years old. However the feudal tenure abolition act 2004, which sought to change all this, is one of the most complex and long statutes i have ever come across. I guess its all about balance.

Do I 'pride' myself being able to talk the talk? Not really, its just like a chef saying 'julienne' as opposed to 'cut into thin strips'. You learn the proper terminology at law school because you have to, and its generally more efficient, not to mention universally understood by other lawyers, judges etc.

Imagine a conversation betwen a judge and lawyer in a criminal court,

J....yes, but there is not actual crime without the mental element and the act itself
L....what do you mean by mental element, what do you mean by the act itself
J....you know what i mean, the defendants state of mind and what he acutally did
L.....sorry, its just that my firm generally use a different phrase to that, we say 'cognitive state'
J....ah, thats a good one, i will have to remeber that.

blah blah blah

its much easier just to say 'actus non facit reum, nisi mens sit rea'

it has a well defined and universally appreciated meaning.

Its a great idea, but frought with too many problems in my opinion.

I work in corporate/commerical law if that makes any difference.

Check this website for a group who are trying to bring more plain english into the UK legal system.

www.plainenglish.co.uk/law.html

 

[chrissy]

^^ thanks heaps for that. i loved ur scenario with the judge and the counsel, i can see the problem there and it's something i want to expand on and exploit in my essay. thanks for all ur help! u raised some valid points!!!

 

[chrissy]

*bump*

 

[autopilot]

I did not read all of the above posts, because I am busy, but i wanted to add my $0.02.

Criticism of legalese is mostly limited to its use in the formulation of legal arguments, as opposed to its use in statutes. People who criticize legalese are not saying that technical legal terms should be abandoned. Rather, they are saying that the presentation of legal arguments are styled after almost artificially formal non-technical language. No one is saying we should abandon use of terms like "mens rea". However, the legal profession SHOULD abandon the use of "said", as in, "Plaintiff answered said document." It's not a technical legal term, and it is not used in everday language.

Legalese should be abandoned to the extent that it artificially formalizes legal writing without any real effect beyond confusing the reader.

 

[kappadaftie]

^^^^^

wtf? 'plaintiff answered said document.'

being a speaker of the queens english (born and raised and educated in the land of english) i find that statement a little confusing.

'said' document refers to the document previously described by the other party. It would only be used in reference to an immediately preceding comment and eliminates the requirement in proof of repeating the article number.

Not only that, it should not 'confuse the reader' because it is part of everyday language. Its a bit like using 'latter and former', rather than repeating the whole sentence construction.

What would you rather the legal profession said?

'Plaintiff answered THE document'??????

Is there much fucking difference? No. This is the problem.....non lawyers want to simplify the legal system.....but they spend so much time simplifying a simple matter that it confuses everyone even more.

Its like saying....'we shall not say half a dozen any more......we shall say 2 multiplied by 8, then subtract 10.'

The only thing that should be 'reasonably' simple to read by lay persons, is statutes. And considering the taks at hand to legislative drafters, it is always a balance between simplicity and specific interpretation, of which the latter must generally prevail.

People just hate that fact that they have to use a lawyer. Just like people that don't understand how a heating system works hate having to call a plumber. But just think about it......... if we didn't have plumber then we wouldn't have Super Mario.

if you want to simplify the legal language that much, why don't we just discard the queen's english altogether and adopt the USA's 100 year old version.

We have been using this shit for hundereds of years, lets not ditch simple words because some people can't be bothered to learn the fucking meanings.



And autopilot, i suggest that if you intend on becoming a lawyer....you do acutally 'bother to read all the posts'. Attention to detail as well as a command of the english language is a great advantage in the field.

 

[chrissy]

^^ i like your line of thinking, i think i see where autopilot is coming from tho, too.

so are you saying that certain aspects of the law field (namely, statutes) should be understood by the lay person?
im still struggling to find any real strong point to argue in favour of keeping legalese... i dont particularly want to argue the old sitting on the fence way, where i mention that "to a degree..." blah blah..

anyway. thanks for the comments thus far. pleeeeeeeeease keep them coming. =)

chrissy

 

[kappadaftie]

In order to satisfy the aspect of law that requires all citizens to be aware of every law..... yes, statutes need to be coherent.

However, why would we need to go any further than that?

By simplifiying things too much you run the risk of lay people thinking they understand the law too much and therefore avoiding lawyers. It happens all the time and often has terrible consequences.

Lets be honest, anyone with half a brain can read and 'understand' a piece of legislation....however, it is so much more than that. The number of times i have read a piece of legislation and had my mind set on it interpretation, only for it to be shattered when i speak to another lawyer or judge. In my opinion it is a bad idea to make the law so accesible that people feel they understand it enough to avoid having to consult a lawyer.

Imagine drafting your own partnership agreement....easy enough at first glance....but you are bound to miss something....and its those little oversights that end up costing you shit loads of money.

In my opinion, the majority of law (in particular commerical and corporate etc) should be left to the lawyers. There is too much at stake for a legal 'executive' to fuck up.

 

[autopilot]

kappadaftie, thanks for the sagely advice.

judges read insane volumes of materials written by lawyers. you can keep their attention better by making the language easier to read. if you disagree, do what you want.

 

[autopilot]

chrissy, get online to chat with me in real time and i'll help you out.

 

[kappadaftie]

kappadaftie, thanks for the sagely advice.

judges read insane volumes of materials written by lawyers. you can keep their attention better by making the language easier to read. if you disagree, do what you want.

all judges were lawyers/advocates/barristers etc, therefore they understand the materials because they have spent the majority of their legal career reading and writing the same things.

It may be different in the USA, due to the huge variety of jurisdiction etc, but in the UK there are very strict procedures and 'layouts' which govern every type of legal document, therefore they do not tend to vary much at all.

For example we have the Requirements of Writing Act, which details all the necessary details required in contracts and other agreements. We also have the Interpretation Act which gives both judicary and lawyers guidelines as to what the specific words in statutes mean.

I'm sorry if i sounded a little forceful with my comments, i think our legal systems probably differ considerably and I just can't imagine the need or benefit of disregarding legal terminology in the majority of situations.

We have the good fortune in the UK of having one jurisdiction, no different federal or state laws, and above all.... principles and rules which have been in existence for hundereds of years and have been gradually adapted over this time to what we have in the present day.

 

[autopilot]

it's not a matter of comprehension. It's a matter of clarity and ease of reading. i'm not advocating the abandonment of legal terminology. I'm advocating the abandonment of superficially formal language and sentence structure.

 

[autopilot]

Combating legalese: law schools are finally learning that good English makes sense

US News & World Report, March 20, 1995

by Ted Gest


"Cease and desist." "Give, devise and bequeath." "Made and entered into." American law offices pour out such mind-numbing redundancies in seemingly endless and incomprehensible memos that often both confound and exasperate cost-conscious clients. But now consumers of legal services, tired of paying large fees for unintelligible documents, are demanding attorneys who can make their cases clearly and powerfully. "When we communicate poorly in writing, there is a cost," argues Duncan MacDonald, general counsel of Citicorp Bankcards, citing lengthy litigation over the interpretation of ambiguous language in contracts and legislation.

To help reduce the likelihood of such litigation, the nation's law schools, where good writing rarely has been featured in the book of legal virtues, are adding both required and elective writing courses to the curriculum. The changes can strain faculties trained to teach legal doctrine, not clear prose. As a consequence, many law schools are beefing up their stable of faculty capable of teaching the second "R." The University of Michigan law faculty, for example, recently voted to create a writing staff of eight, replacing a part-time director and 64 student teachers. Pace University in White Plains, N.Y., has gone further_putting writing teachers on the tenure track and combining the first-year criminal law and writing classes. The purpose of these actions is clear. Says Marilyn Walter, legal-writing director at Brooklyn Law School: "Some of the most thoughtful learning takes place when you have to write_that's when you find out if you really understand something."

More than half of the nation's law schools now require or offer a writing course after the first year, according to a new survey by Prof. Jill Ramsfield of Georgetown University Law Center in Washington, D.C. That compares with only a handful a decade ago.

Shifts of this magnitude are unusual in a discipline in which the curriculum has changed slowly. But schools and law firms alike finally are recognizing the link between good writing and winning cases. "Law is a literary profession," says writing director Laurel Oates of Seattle University law school, one of the first with an extensive writing curriculum. "The correlation is high between writing ability and getting a good job."

This may surprise those whose image of lawyering is Johnnie Cochran's impassioned courtroom arguments for O.J. Simpson. The everyday reality of practice is far different, however. Attorneys devote most of their billable hours to researching and writing for judges, clients and their own partners. Thus, whether they scribble on yellow legal pads or hunch over computer keyboards, lawyers can gain a decisive career edge by writing clearly and persuasively. Partners who oversee hiring now expect their charges to turn out high-quality work soon after graduation. "Law firms are desperate for good writers," says Jethro Lieberman, who heads the writing program at New York Law School. "Smart students who can write better will do better." To help law firms judge the writing ability of job applicants, George Mason University in Virginia even computes a separate GPA for writing courses.

When jobs for lawyers were plentiful_and applications were booming instead of falling sharply_law schools did not concern themselves much about niceties like writing skills. Educators assumed that anyone who gained admission to law school was a fluent writer. Many schools added a dose of legal perspective in a one-semester course taught by a third-year student, believing that any writing deficiencies could be dealt with once a graduate started work. The result was disastrous. "It's not unusual to see new lawyers whose writing has not been seriously critiqued," says Stephen Armstrong, who coaches writing at Shearman & Sterling, a large, New York-based law firm that is one of the few formally offering such help. Academic critics like Michigan law Dean Jeffrey Lehman say it is clear now that colleges do not teach the kind of "crisp, reflective and balanced writing" needed in effective law practice. Law schools have added to the problem, Lehman believes, by seeming to prefer "brute-force argument" over subtle, but persuasive, writing.

It is primarily in the first year of law school that students learn the fine art of persuasive writing. In the past, student writing generally consisted of just a paper or two that teachers returned after the end of the semester, often with only perfunctory comments. Now, most schools require detailed faculty reviews of a half-dozen or more writing samples over the course of the entire year. Many students find it "the most time-intensive and difficult course in the first year," says Georgetown's Ramsfield. "It's like speaking a new language."

The writing assignments go well beyond scholarly papers on legal doctrine and mock briefs to appellate courts. At John Marshall Law School in Chicago, for example, students practice drafting everything from legislation to wills. "By the time they finish, they will have seen, drafted and touched every possible document they may encounter in practice," says Susan Brody, director of the school's lawyering skills program. Harvard plans to broaden a one-semester writing course that focuses on litigation into a full year's class that will include memos used in negotiating dispute settlements.

Many schools now emphasize that thorough research is an essential part of good writing. The Illinois Institute of Technology's Chicago-Kent College of Law puts first-year students to work delving into databases that contain court opinions, statutes and other raw material that serve as the grist for briefs and memos. A group of 30 students is experimenting with using laptop computers that allow instructors and students to communicate by electronic mail and permit students to display the contents of their textbooks on a screen. "The ability to organize data so quickly is a phenomenal timesaver," says writing instructor Sarah Bensinger. Case citations in hand, students are drilled in using plain English rather than legal jargon. "I arrived thinking that writing like a lawyer meant using big words," says Edmund Greenidge, 27, a first-year Chicago-Kent student who quickly learned that simpler usually is better. "There's no rule that lawyers have to bore and confuse each other," explains writing instructor Terri LeClercq of the University of Texas law school, where nearly 150 students compete for 15 places in an advanced writing class. While most writing instructors have been trained as lawyers, some, like LeClercq, used to be English instructors, and a few, like Lieberman, have worked in both law and journalism.

As they learn from professors how to use language to communicate rather than to obfuscate, lawyers-to-be are discovering that structuring a brief or memo can be as challenging as assembling the research. Undergraduates tend to write free- flowing essays that start inauspiciously and attempt to build to a grand conclusion. By contrast, most legal briefs state the issue first and proceed through the logical steps necessary to resolve it. (The lawyerly nickname for that form of essay is "IRAC"_issue, rule, application and conclusion.) Students discover that they sometimes must adapt the formula creatively to get the attention of disputants. New York Law School's Lieberman says that arresting "leads" can be as effective in law as in journalism. He cites a brief in a successful design-infringement case over a rubber dinosaur that declared it was "the Lord, not Hasbro, that brought the triceratops and brontosaurus to this Earth."

While a proliferation of new legal textbooks preaches the clear-writing gospel, the real key to successful courses is constant feedback. "I thought I was a good writer, but that idea was shattered when I got my first paper back with red ink everywhere," says Beth Donahue, 21, a student at Chicago-Kent. Despite the pain of such experiences, once on the job, students from schools like Chicago-Kent and John Marshall report having a big edge over colleagues from elite law schools that shun the teaching of research methods in tandem with writing. "Being able to research and write well gives you confidence_it's one major thing you don't have to worry about," says Donna Marks, a 1991 John

Marshall graduate now practicing at a large Chicago law firm. A memo Marks wrote as an intern in a real-estate case was deemed good enough to be used by senior partners_an unusual accomplishment for a summer employee.

Schools are instituting a variety of techniques to make sure that the new emphasis on writing takes hold. Many ask students to critique each other's papers, which simulates the collaboration typical in law firms. Brooklyn Law School focuses on "critical reading," prodding students to analyze the context of judicial opinions rather than parroting quotations willy-nilly. St. Mary's University in Texas stresses personal attention, assigning 45 teachers and practicing lawyers to give students writing tips in weekly, one-on-one conferences.

Leaders of the bar are cheering the clear-writing trend. In a recent survey by the American Bar Foundation, law firm partners and young attorneys rated written and oral communication the most valuable legal skills. In short, the day may be coming when clients will be able to comprehend the papers they are being asked to sign. Of course, at that point they may have less need for lawyers.

direct link

 

[autopilot]

may i also point out that my law school, john marshall, was ranked 3rd in the country for legal writing programs by u.s. news and world report?

maybe this will lend some credibility to my position on "legalese".

direct link

 

[Dr. J]

^^^
No offense, but US News & World Report rankings don't carry that much weight. Even if one entertains the idea of placing a premium on rakings, I find the school's Tier 4 overall ranking, coupled with a 25th-75th LSAT range of 152-156, a bit more telling...

"...the US News and World Report survey is "meaningless or grossly misleading. ... Statistics cannot reflect such factors as the quality of faculty, curricular offerings, adequacy of library resources, and quality of life. Most importantly, the U.S. News and World Report ranking or rating is, in significant part, based on responses of (people) who could not possibly know enough about each of the 175 ABA accredited law schools to rank or rate the law schools by quality quartiles. This survey is designed more to sell magazines than to inform the public about the relative merit of law schools." - adopted by the American Bar Association's Section of Legal Education and Admissions to the Bar, the Law School Admission Council and the National Association of Law Placement.

 

[kappadaftie]

may i also point out that my law school, john marshall, was ranked 3rd in the country for legal writing programs by u.s. news and world report?

maybe this will lend some credibility to my position on "legalese".

direct link

I'm not trying to be pedantic, but how does that lend credibility to your position on legalese?

One of the law schools that i went to had a world recognised course on international commerce, however that doesn't automatically make me a good source for that area of law. If i took the course, passed with flying colours and then proved myself in the field throughout my career, then it would be possible to say that i was a 'credible' source for international commercial law.

Having your university mentioned in some unapproved report doesn't make you credible in something.

 

[chrissy]

yikes u guys are starting some war on law schools.

which is all very well, but...

anyway. so far no one has been able to find a good point for what i wanna argue then...so it looks like ill be forced to argue something i dont want to argue this sucks.

 

[Dr. J]

^^^
You shouldn't rely on others to make your argument. IMO, the ability to come up with an argument - one that is easy to prove, or one where several valid arguments can be made to assert that point - is the sign of a bright mind or a valid argument. If you think you have a good thesis, you can't pin your hopes on the ability of others to provide your rational. If you can't procure this evidence on your own, or through the solicitation of advice, that perhaps says something more about what you're trying to argue...?