Wednesday, June 19, 2013

What is Really Wrong with Legal Language?

by Cheryl Stephens

Remarks delivered to the
Wills and Estates Section
Canadian Bar Association
Vancouver, British Columbia
November 27, 1990

Linguists identify legalese as a distinctive dialect. One reason this has come about is that legalese has not evolved in step with modern English. Language is constantly evolving with daily usage. But legal language has been conservative and somewhat static.
Legalese uses outdated grammar and sentence structures. It also tends to use improper or non-standard punctuation, passive voice, and awkward pronoun references.
Legalese is wordy, turgid, and impersonal.
Legal language suffers from the use of archaic vocabulary.
Legalese suffers from an excessive use of jargon and technical terms without the definitions that the layperson requires.
It has some genuine legal terms of art that Professor Robert Benson defines in a question: Does the term have an uncontroversial core meaning that could not be conveyed succinctly in any other way? Benson suggests that there are less than 100 genuine legal terms of art. When used with the layperson, terms of art should be explained.
It uses everyday words while giving them extraordinary connotations and meanings without defining those special meanings.
It clings to foreign words, especially French and Latin.
The point I am making is that legalese is an outmoded legal institution which law schools teach us to use. Legalese is a block to communication with clients; it has made lawyers the butt of jokes for centuries. Chaucer ridiculed lawyers for their language.
Legalese was once defined as "the language of lawyers that they would not otherwise use in ordinary communications but for the fact that they are lawyers".
A legalism has been defined as "a word or phrase that a lawyer might use in drafting a contract or a pleading but would not use in conversation with his wife".2 The definition should, of course, add "or her husband".

Exactly What is Plain Language, Especially Plain Legal Language?

It is ordinary adult English, used in daily conversation. It is the use of language stripped of archaic forms and vocabulary, aided by design, lay-out and typography of the text.
It acknowledges that writing is a process and reading is a psycholinguistic process as well, each with its own rules of conduct and efficiency.
When called upon to define plain language in our introductory pamphlet this was our Project's definition:
Plain language is writing that can be understood at first reading by clients, lawyers and judges; it is legally binding but it is also logically organized, concise and unambiguous. It uses normal or standard grammar, punctuation and capitalization. It considers the reader's level of knowledge and state of mind. It uses a tone and style that is professional yet appropriate to the circumstances. It uses non-sexist vocabulary and writing techniques.
Plain language takes account of the empirical research of the past 30 years about how the mind works - how people read and assimilate information. It pays attention to format and design. Plain language legal documents have headings and formatting that provide for quick access to each idea. They are also designed for easy computerized reproduction.
I must tell you as well that plain language is a basic democratic, consumer demand, and an access to justice issue in this province.
Plain language is a recognition that people are entitled to understand the documents that bind them or state their rights. Because the law deems that we have knowledge of the law places a double duty on government: to make and to communicate laws in a way is widely comprehended.
Plain language drafting takes into account that 62% of the Canadian population has normal or reasonable reading skill and 68% of the population is in the average intelligence range. They have a right to have public documents written to their level of comprehension.
Plain language does not normally reduce the level of writing to that needed to reach the 38% of the population who have difficulty reading. Nor does it take as its audience the 15% of the population with above average intelligence.
It speaks to the widest majority. Plain language recognizes it is not the reader's responsibility to labour to discover meaning.

So What do You Want Us to Do?

The Canadian Bar Association and the Canadian Banker's Association formed a Joint Committee on Plain Language two years ago. It has now submitted its final report that contains many recommendations. The CBA will be called upon to endorse the report and its recommendations and to participate in a national Plain Language Coalition.
Form a Plain Language Committee of your Section
To assist the CBA in its plain language activities, or
To help the CLE, for example, to review or contribute plain language precedents to course materials and the practice materials we publish.
To encourage your members to recognize that they are professional writers and need to improve or update their writing skills.

  1. Robinson, Drafting - Its Substance and Teaching. 25 J.of Legal Education 514,516 n.12(1973) quoted in A Brief for Plain English Wills and Trusts, Thomas S. Word, Jr. University of Richmond Law Review, Vol. 14 Spring 1980 No.3 471
  2. Smith, A primer of Opinion Writing, For New Judges, 21 Arkansas Law Review 197, 209 (1967) quoted in Word as above.

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