It’s Time for the Death of Legalese
Suppose your doctor comes striding in and says, “Bleeding by leeches! That’ll balance your four humours.”. You might wonder, even if it was the right treatment, “What’s he on about?” A lawyer’s pronouncement, that, in the instant case, there is a prima facie cause of action based on res ipsa loquitur, would just as likely result in an irritated client rather than an impressed one. It’s time to finally do away with legal jargon and gobbledygook that’s virtually impossible for a non-lawyer to understand. And relinquish the status quo.
The language lawyers use to convey information matters, and while of course the vocabulary and tone can shift based on the audience, there is one commonality that is becoming rather more obvious each year: legalese is on its way out of the profession. So, if you have not already made a conscious effort to begin writing in plain language, now is the time. Clients and judges alike have expressed a desire for straightforward legal communication, and while “terms of art” have their time and place, accessible language is becoming a critical qualification for modern attorneys.
It’s true. The Founding Fathers hated legalese.
Perhaps one reason legal jargon persists is that it is romanticized; it conjures images of centuries-old courts, the foundations of the legal system, and the concepts underpinning our sense of justice.
Know that even the American Founding Fathers loathed legalese. Thomas Jefferson, when sending a draft of a bill to establish elementary schools, was reported to have commented:
This biting response to a bill hits home why legalese is universally despised: it seems self-serving and hardly intended to serve a client.
Alexander Hamilton and James Madison, two of the most renowned legal writers in American history, also believed that laws themselves should be written in plain language. Federalist Paper 62 states:
What Hamilton and Madison inform us is not only should the law should be stable and consistent, but written laws must also be easy to read – or else they are of little or even no use. Language conveys meaning, and if the language of the law is unclear, so is the meaning.
The federal government has taken this to heart. Plainlanguage.gov advises drafters of all kinds to avoid jargon, and the guidance is not even limited to legal writing. Among the many helpful tips provided, a few of the most notable include:
- Define technical terms when necessary, but keep definitions to a minimum.
- Use “must” rather than “shall” to convey obligations or requirements.
- Avoid formalisms that give legal writing a “musty smell”.
The first question you should ask yourself when drafting a contract is: Who is this for? When attorneys sit at the negotiating table the outcome, more often than not, is a lengthy and wordy document, dozens of pages long, rife with sections, subsections, and cross-references throughout. Perhaps, quite rightly, they felt they succeeded in covering all their clients’ bases, minimizing their risks, and representing their interests. But who are the ones who have to decipher and use those contracts on a day-to-day basis? Usually not the attorneys.
If your client is a small supply company, it is possible that the person using the contract is a mid-level contract administrator, business analyst, or salesperson. Businesses should not have to have lawyers on staff to review their sales or supply contracts to make sure they are in compliance.
A Harvard Business Review article, “The Case for Plain Language Contracts,” detailed one general counsel’s experience whittling down three digital services businesses’ contracts into a short plain-language one. Shawn Burton, General Counsel of GE Aviation’s digital services group writes, “The complexity of the contracts was making negotiations drag on for months, frustrating prospective customers. Rather than pursuing new opportunities, capturing new business, and delivering world-class digital solutions, the sales team was spending most of its time debating archaic contract language.”
GE Aviation then launched an initiative to pare down seven existing contracts into one short and sweet plain-language contract. Burton acknowledged that it took time to “unlearn” how to write like a lawyer. He uses an example of the indemnification clause before and after the overhaul, and the difference was striking. The clause was reduced from 150 words down to 41, and it no longer even contains the legalese word “indemnification.” Burton reported that this plain language contract drastically improved the negotiation process by limiting the amount of redlining necessary to get it done.
Representing a corporate client in a contract negotiation is about finding a balance between mitigating the legal risks and allowing the business to meet its needs. By removing legalese from contract drafting, lawyers can still protect their clients’ interests while keeping them engaged and happy with business results.
Civil Litigation & Criminal Defendants
Representing an individual client in a personal injury or criminal case is not the time to show off a robust legal vocabulary either. When speaking to a person who is engaging a lawyer for the first time, while it is important to show them that you are competent and trustworthy, it’s best not to start out your relationship with sprinklings of jargon. Yes, the legal system is complex, et bien sûr, there are a lot of unfamiliar words and phrases that must be used throughout the case. However, your client meetings should use relatable and easy-to-understand language. Not only is it critical that your communications be effective, but it can also help comfort a client who is going through a very difficult time to know that the process will not be as foreign or intimidating as it seemed.
Using legalese in a client meeting, especially with a client who is new to the judicial system, can actually hurt your relationship if it comes off as pretentious or defensive. Your primary value as an attorney is to be able to translate your client’s needs and objectives into the esoteric language of the court system – and vice versa. It’s unnecessary with clients.
To the Court
In front of a judge or magistrate, of course, there are going to be times when legalese is not only helpful, but necessary, to achieve a successful outcome in a case. Throwing in a “foregoing” or “whereas” is not going to make or break a case, but a “res judicata” just might. Many Latin legal words are terms of art, a short way to summarize a fairly complex legal concept. These will probably never go away, and frankly, they probably should not.
However, this does not imply judges want to read pages of unnecessary jargon in briefs or motions. Brevity is key. In fact, legal writing courses in law school are starting to emphasize brevity and simple sentences. Appellate judges too will skim over briefs that are poorly written. One federal judge in the Western District of Pennsylvania published the following guidance about his writing preferences:
Legalese. Do not use Latin or legalese; this includes words like “arguendo,” “infra,” and “supra.” The only exceptions are where the names of a claim, defense, or doctrine are in Latin and there is no English substitute (for example, “negligence per se,” “ex post facto violation,” “motion to reinstate nunc pro tunc”).
This guidance provides a simple explanation for when Latin or formal legal phrases are appropriate: when they are necessary. Otherwise, they should be translated to plain English, paraphrased, or eliminated.
Legal marketing requires firms to put out helpful content. Getting a firm’s site to the top of a search engine results page relies on strong search engine optimization, which means the firm needs to create web pages that people want to read. If your firm is attracting clients through digital marketing, you may find your firm drafting FAQ’s or blogs relating to some of the common questions or topics in your field. For example, if your firm represents car accident plaintiffs, your page may offer a blog post entitled “What to Do if You’ve Been Hit by a Car?”
Many firms have their lawyers draft these pages to ensure they are legally accurate. But marketing text is quite different from legal text. While the content must be legally accurate, it also needs to be written with the audience in mind. If your legal content has legal jargon throughout, it is more likely to confuse or frustrate your readers rather than entice them to contact you. Each piece of marketing content on your firm’s site should be read not only from the perspective of how relevant the information is to your prospective clients, but also how readable and navigable it is.
Why Is It So Hard to Give Up Legalese?
Despised yet prevalent, why is legalese so hard to vanquish?
Brian Garner, who led an organization called LawProse seeking to simplify legal writing, posited that the use of legalese persists because, in each generation, law students continue to strive to learn it. The casebook method of teaching law rewards students to learn to read and speak like antiquated legal opinions, rather than like real people. In Garner’s words, law students learn to speak legalese “because they won’t feel like lawyers until they’ve mastered it.”
The student who rattles off jargon on day one of law school may stand out as someone who “speaks like a lawyer,” whereas a student speaking in layman’s terms perhaps comes across as relying on intuition rather than applying knowledge gleaned from case law. In reality, this skill does not always translate effectively to practice. The goal of legal writing and speaking is to convey information and make strong arguments. Judge Thomas Reavley of the Fifth Circuit Court of appeals once called legalese ‘‘a substitute for good writing, for thinking, for editing, and for focus.’’
Ditch the legal jargon, and instead spend some time thinking about what you are trying to write or say. Chances are that there is a much clearer and more concise way to say it without needing a single “aforementioned.”