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Legalese: Won’t Do With It, Can’t Do Without It

Legalese: everyone hates it, but no one is brave enough to entirely excise it from their writing.

By Stefan Savic  
on

lawproseA rhetorical question popular amongst legal writing scholars is: what is the difference between legal writing and writing in plain English? The answer should be “there is no difference,” but this theoretically correct answer is far from true in reality.

Unless you are an 18th century aristocrat or a character in HBO’s Deadwood, chances are that your will, pre-nup, contract or just about any terms and conditions that you blindly agree to are not worded in your regular daily parlance. It is not much of an exaggeration to say that those things are written in nearly a different language. Indeed, English-speaking people still need lawyers to translate the meaning of rules, regulations, and contract provisions.

At our firm we put a great emphasis on writing in plain English. The use of plain English has been encouraged over the past few decades and has been pushed by state legislatures, the Senate, and several presidents, including recently President Obama, who signed the Plain Writing Act in 2010. While these efforts have proved somewhat fruitful and resulted in improvements in legislative or otherwise government-drafted material, the day-to-day legal universe has been slow to move away from archaic phrases, unnecessary Latin, and other awkward legalese.

It is safe to say that nobody likes legalese. So why do we still use it?

You need to be brave to step away from what you know works. Sure, every time we see archaic phrases or unnecessarily redundant words, you roll your eyes, but we still use them. We do so because it works. In this profession, where a placement of a single comma can make an important difference, practitioners are nervous about swaying away of the formula that has been proven to work.

Sure, writing “convey and bequest” or “last will and testament” is redundant, but lawyers have been doing it for a long time and it never caused controversy, so why change it now? This is especially true with documents where intent plays such an important role, one may look too much into the fact that the drafter of the document purposefully chose to change standard centuries-old terminology. In other words, changing ingredients in a proven recipe can only hurt, no matter how unlikely.

The same goes for many litigation documents. I had a filing clerk compare my filing with an ancient copy that had been sitting in the clerk’s office for who knows how long, and said to me, “you are missing ‘whereas’ in all caps before your paragraphs.” We got away with having enumerated paragraphs, but at least for the time that it took me to persuade the crowd that gathered around my rebellious filing, I regretted not sticking to the good ol’ template.

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But there is some terminology that is inexcusable, except that it perhaps provides some entertainment to the reader. I can’t help but laugh every time I read the Yoda-style worded instructions to the state marshal in a Connecticut summons form that reads “hereof fail not, but of this summons make due service and return,” or introductions to pleadings and memoranda that begin with “now comes the plaintiff.”

Legalese: everyone hates it, but no one is brave enough to entirely excise it from their writing. On the bright side, as friend of my jokingly noted recently, as long as we use the good old legal terminology, the clients won’t think that they can do our work themselves.

Stefan Savic was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].

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