** By HeplerBroom Summer Associate Michael E. Harriss
Legalese—or in Plain English, the complicated language used in legal documents—has blemished legal writing for centuries, confusing lawyers, clients, and judges alike. While a judge is often faced with the unfortunate task of making “sense out of nonsense,” the client is often put in an even more unfortunate position of not understanding what their lawyer is arguing on their behalf. If the client were present at oral argument, chances are the client would fully understand the arguments presented. After all, attorneys are taught to speak to the court in a clear, concise, and straightforward manner.
Then why is legal writing so difficult to decipher?
Simple. It’s the legalese. The “heretofore”s, “wherein”s, “Party of the First Part”s. The “to wit”s, “aforementioned”s, and my personal favorite, “Fail not, at your peril.”
Bryan Garner, the editor-in-chief of Black’s Law Dictionary who has also written extensively on legal writing, noted that, “[i]t is hardly an overstatement to say that plain-language reform is among the most important issues confronting the legal profession.” If lawyers “want the respect of the public, [lawyers] must learn to communicate simply and directly.” Purging legalese by adopting plain language is the most direct path to simple communication.
Many non-lawyers may assume that lawyers are required to write in old-fashioned prose or that judges expect or prefer legalese to plain language, but in reality the opposite is true.
Imagine you are a judge and you have been asked to decide a case involving the American Bar Association’s policy statement when publishing a book. The policy reads:
“The materials contained herein represent the opinion and views of the author, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association, unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for education and informational purposes only.”
Contrast this paragraph with the simple, one-line sentence: “The essays in this volume represent the author’s views—not those of the American Bar Association.” Both make the same point, but which would you be more likely to understand?
In Garner on Language and Writing, the author interviewed several prominent judges and attorneys to get their thoughts on the use of legalese. Theodore Olson, former Solicitor General of the United States, told fellow attorneys that they “need to be able to speak to people and forget the jargon and forget the legalese because you can communicate the same thoughts without being swept up in the technicalities of a particular legal issue.”
When asked: “What are the characteristics of good legal style,” Justice Antonin Scalia advised that “[b]eyond pure literacy, avoid legalese.” He also suggested that “a good test is, if you used the word at a cocktail party, would people look at you funny?”
“Peradventure”—as in “Beyond the peradventure of a doubt”—fails that test; people would look at you funny if you used it at a cocktail party, right?
Justice Stephen Breyer was quite clear when asked whether he had an opinion on legalese: “I’m against it…Terrible! Terrible!”
Judge Morris Arnold of the Eighth Circuit had this to stay about legalese in the briefs he has read: “I hate legalese. It’s to be avoided at all costs. There’s much too much of it. There’s too much jargon.” Do you think Judge Arnold would look more favorably on your case if your lawyer submits a brief muddled with legalese?
Likewise, Judge Tomas Reavley of the Fifth Circuit was even more frank when Garner asked what legalese says about the lawyer: “Either they’re pretending to be what they’re not or maybe they think they can impress you with legalese. But they don’t help their cause.”
Then why do lawyers continue to use legalese?
The most likely answer is tradition—many lawyers continue to use legalese because it is the language that has always been used. It’s the language they were taught in law school. Legalese is part of both the spoken and written legal discourse, so law students often learn it without even realizing it. The impact of tradition was summarized most accurately in the observation that “[t]he novice legal writer yearns to acquire legalese…But the expert yearns to eliminate it.”
Eliminating legalese, however, is not as simple as it sounds. Bryan Garner explained the difficult balance that the expert lawyer must strike:
“Legal traditionalists may be justified in not wanting to throw over too readily what has long served well. Yet tradition alone is not sufficient reason for retaining outmoded forms of language. Modern legal writers must strike a difficult balance in the quest to simplify legal English. They should not cling perversely to archaic language, which becomes less comprehensible year by year, for its own sake. Nor should they seek to jettison every word or phrase that bears the stamp of legal tradition.”
It is likely an inevitable byproduct of legal education that the novice will continue to learn legalese. This is not the problem. Although difficult, a client should expect their attorney to, at the very least, attempt to strike the balance. The problem is that for many clients their lawyer has failed to become the expert; he has failed to eliminate legalese from his legal writing.
Another common reason that lawyers continue to use legalese in their legal writing is the mistaken belief that old-fashioned prose is precise. The thought is that legalese is the language of the law that has developed over time and has defined meanings within legal writing. Bryan Garner, however, has debunked this myth noting that “’precision’ is often illusory for two reasons: (1) ambiguity routinely lurks within traditional, legalistic language; and (2) when words proliferate, ambiguities tend to as well.” Justice Scalia backed up this point when he wrote that the first rule of good style is to “value clarity above all other elements of style.” And in order to achieve clarity and persuade judges, the lawyer must shun “puffed-up, legalistic language.”
For an example, simply scroll back up to the ABA’s policy statement…
While we are still waiting on the plain-language revolution, plain-language reform is occurring in both law schools and progressive law firms like HeplerBroom. Legalese, like any other bad habit, is a tough one to kick. But the future looks bright for lawyers to communicate simply and directly by kicking those bad habits.