We Shall Overcome…. Legalese

Legalese – Legal writing is, more than not, confounding to a person not trained in the law. There is a reason it needs to be taught in law schools – no other education or experience prepares you to draft contracts or write briefs in the language of the law.

While a certain amount of that learning curve is terminology, there has also been, throughout the years, a push for lawyers to write in a more “plain English” style instead of in “legalese.” Using rarely-used words, writing twice as much as you need to to explain a concept, structuring sentences in a way that makes them overly long or difficult to comprehend – these are some of the complaints of today’s legal writing. This has been the subject of several books, scholarly papers and humorous articles, as lawyers try to explain to their fellow professionals how and why they should abandon “legalese.”

So what is plain English? It is, in essence, easy-to-read and comprehend – “English that emphasizes clarity, brevity and the avoidance of technical language.” In other words, English that can be understood by non-professionals. For technical writing, this might be termed “dumbing it down” for the audience. For lawyers, it means writing so that their clients can read or understand what they write without having to consult them.

Of specific concern are pieces that are written for non-lawyers to read. An article written by Carol M. Bast (appearing in the Florida Law Journal) argues that “the criticism of impenetrable legal writing is well founded, especially concerning ‘functional documents’” – which she defines as “contracts, jury instructions, and legislation written to be acted upon… because a reader cannot act on a document the reader cannot understand.”

And not only has lawyer’s style of writing been criticized, but the specific words they use as well has been a topic of debate. Especially contested words are words that are considered “weak” or allows lawyers to write in a way where they don’t take a strong position. For instance, a recent article in the August 2012 ABA Journal written by Bryan Garner (and cheekily titled “Shall We Abandon Shall? ) argues that the word “shall” needs to be eliminated from legal writing and documents. He writes the word needs to be replaced with a “clearer word more characteristic of American English.” Garner also takes on other commonly used legal words: shan’t and may also are on the chopping block. Other contentious words or phrases include: quite possibly, at best/at least, might be, seems to, appears to, perhaps and so-called.

Other issues with legal writing that have been debated include: using passive voice; “nominalizations” (turning verbs into nouns, then adding in an extra verb in its place in a sentence – i.e. “reached a decision” vs. “decided”), writing run-on sentences, redundancy (i.e. “each and every” vs. “every”), using too many synonyms, and the worst in my opinion – double negatives (not uncommon.)

A Canadian barrister and author of “A Model Plain-Language Act,” David C. Elliot, even proposed penalties for writing legal documents in an unclear manner, which included imposing fines, mandatory community service hours or even requiring an offender to take writing courses.

So whether or not you choose to follow the call to simpler language or write “shall” in every place you can, the choice is yours. Just know that another option besides writing “legalese” is not only out there but also being heralded by other legal professionals.


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