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.
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Legalese uses outdated grammar and sentence structures. It
also tends to use improper or non-standard punctuation, passive
voice, and awkward pronoun references. |
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Legalese is wordy, turgid, and impersonal. |
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Legal language suffers from the use of archaic
vocabulary. |
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Legalese suffers from an excessive use of jargon and
technical terms without the definitions that the layperson
requires. |
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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. |
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It uses everyday words while giving them extraordinary
connotations and meanings without defining those special
meanings. |
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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
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To assist the CBA in its plain language activities, or |
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To help the CLE, for example, to review or contribute plain
language precedents to course materials and the practice
materials we publish. |
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To encourage your members to recognize that they are
professional writers and need to improve or update their writing
skills. |
- 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
- Smith, A primer of Opinion Writing,
For New Judges, 21 Arkansas Law Review 197, 209 (1967) quoted
in Word as above.
