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Legal Langauge
Legal Langauge
Many experts believe that legalese has its roots in the the Battle of
Hastings in 1066, which lead to the Norman conquest of England.
After the conquest, Norman French found its way into English
courts. English lawyers were unsure as to whether a French word had
the same meaning in English, and thus began to include both words in
contracts to be on the safe side. This lead to phrases still in use today,
such as “right, title, and interest,” where “right” and “title” are
English, and “interest” is French, and “breaking and entering,” in
which the English word “breaking” is paired with the French word
“entering.” This cross-channel linguistic mash up begat ever more
convoluted phraseology as it was passed from generation to
generation of lawyers.
Several features can be seen in legalese. The first is the very careful
word use. In law, words have very specific and clearly defined
meanings, and lawyers are careful when drafting legal documents to
say precisely what they mean, even if the meaning is only apparent to
other lawyers. Some of the word use may appear unusual to people
who aren't familiar with the law, as ordinary words can have a
different meaning in a legal context. For example, seemingly
redundant phrasing actually isn't, when the legal meanings of the
phrase are considered.
Legal writing has long been criticized for being almost unintelligible
to laypersons and on occasion, to lawyers. In his article, "The End of
Legalese: The Game is Over," Robert W. Benson quoted a doctor's, a
lawyer's and a judge's reactions to legalese. In reply to an insurance
company, the doctor wrote:
I am certain that you put a lot of thought into the letter but as far as I
am concerned it is not understandable. This was not written for the
common man to understand; it was presented in a smoke of confusion
and "double talk." I want you to rewrite the letter so that I know
simply and plainly what was on your mind.
I have in my time read millions of words from the pens of judges and,
despite my professional interest in them, I have rarely failed to
experience a sense of defeat or even pain. Sometimes it is as though I
saw people walking on stilts; sometimes I seem to be trying to see
through dense fog; and always there is the feeling of being belabored
with words. I have known moments when I felt actual physical shock,
as though the words were bats or bricks.
This article will first explore the trend toward plain language. The
article will then review plain language rules and compare the rules
with linguistic studies of two types of function documents--jury
instructions and appellate briefs--and the revisions necessary to
rewrite them in plain language.
On the lighter side, there are contests both for excellence in legal
writing and for the most atrocious legalese. For example: "The
Language of the Law" column of the Florida bar News has run several
excellence in legal writing contests. The goal of the contests is "to
shake loose the shackles of legalese." Award winning passages are
printed in the Florida Bar News.
You are probably on your way to using plain language if you follow
the rules. Many legal writing books, including Plain English for
Lawyers by Richard C. Wydick and Legal Writing: Sense and
Nonsense by David Mellinkoff, contain rules for using plain English.
The rules are designed to guide the legal writer to produce readable
and understandable documents.
8, Punctuate carefully.
Some Day someone will read what you have written, trying to find
something wrong with it. This is the special burden of legal writing,
and the special incentive to be as precise as you can.
Rule 4: Usually You Have Choice of how to Say It. Choose Clarity.
The only thing about legal writing that is both unique and necessary is
law. To simplify legal writing, first get the law right. You can't
simplify by omitting what the law requires or including what the law
forbids. The better you know the law the easier to decide what law
ought to go in, and what is overkill or window dressing.
in the quiet time before you become excited with your own words-on-
paper, plan. Talk over goals with those who know more law. Mull,
jot, fret, read, outline. Then write. If you start from a plan, the writing
will help your thinking and writing. Unplanned, the flow of words
becomes a distraction.
The Charrows study did bolster the trend toward plain language. The
study showed that jury instructions and other legal documents
intended for the law-person should be written in plain language to
eliminate the difficulties discovered in the study. "The inability of
jurors to comprehend the [judge's] charge adequately has obvious
implications concerning the soundness of the jury system: If many
jurors do not properly understand the laws that they are required to
use in reaching their verdicts, it is possible that many verdicts are
reached either without regard to the law or by using improper law."
In his study, Stratman had appellate judges think out loud while
reading appellate briefs for a real-life case. Stratman calls this
"concurrent reader protocols." using concurrent reader protocols, the
study isolated three significant problems with the briefs: "missing
information," "miscues," and "too much information at once" and an
overall problem of organization. Stratman found that missing
information about the procedural history of the case slowed down the
reader. In the study, "miscues" included contradictions, ambiguity,
failure to make a crucial point, and "ill-constructed" arguments. These
miscues caused judges to draw "erroneous inferences." As Stratman
points out, even though the judges eventually understand the
argument being made, "these errors reduce the credibility of the
judge's belief in the credibility of the appellant's argument." Giving
too much information at once was the third problem. Stratman found
that giving too much information at once, some of which information
may not be relevant, makes reading much more difficult. An overall
problem identified through use of reader protocols was organization.
When information was presented in an order other than that in which
the reader needed to use it, the reader was forced to spend time
mentally reorganizing it.
The results of Stratman's study also bolster the use of plain language.
Although Stratman used slightly different words to describe the
comprehension problems encountered by the appellate judges, the
judges would not have faced these problems had the writers of the
appellate briefs followed Wydick's and Mellinkoff's plain language
rules. Wydick emphasized that words should be arranged with care.
Mellinkoff urged the writer to plan before writing and make writing
precise and clear.
6, Ecology text "from a sixth grade reading textbook used in the Los
Angeles City schools."
The results of the cloze test are disturbing for nonlayers considering
that "the median number of years of education for the Nation's
population as a whole is 12.5." Especially disturbing are the low
grades on the standard jury instructions and the surgery consent form.
Neither jurors nor individuals being prepared for surgery are
accompanied by lawyers, yet misinterpretation of a jury instruction or
the consent form can have serious and even life threatening
consequences.
The court reluctantly held that the challenged instructions did not
violate the Due process Clause. Concerning the California instruction,
Justice O'Connor wrote "we do not condone the use of the phrase
[moral certainty] but we have no supervisory power over the state
courts...." In his concurrence, justice Kennedy stated:
It was commendable for Chief Justice Shaw to pen an instruction that
survived more than a century, but, as the Court makes clear, what
once made sense to jurors has long since become archaic. In Fact,
some of the phrases here in question confuse far more than they
clarify.
Despite the name, Plain English is only partly about language. It also
emphasizes the importance of document design. Any document needs
clear layout, in sections and paragraphs that expresses the structure of
the information and with the effective heading and subheadings to
identify local content. Adequate white space between the sections
and in lists also makes the information more accessible. Where
language comes in, it is broadly a matter of seeking simple everyday
word whenever possible and speaking more directly to the reader.
Sentence need be shorter and less intricate with punctuation that
ensures reliable reading. An average of 20 words recommended,
though individual sentences will of course vary around that. The
most important principle of Plain English is to keep the reader in
mind as you write. Think of yourself as communicating to someone
across the table and how each sentences sounds. Your writer’s “ear”
should react whenever sentences leave the reader grasping the breath.
Similarly, if your lawyer drafts a will or trust for you and you do not
understand all of the provisions, does that mean it's a bad document,
or that your lawyer is being an obscurantist? No, of course not.
Wills should contain a tax clause. A tax clause is a provision that says
where the executor should get the money to pay federal and state
death taxes. A common boilerplate provision could provide that all
taxes are to be paid from the residue of the probate estate. Maybe
your will says that.
Structure
A legal pleading or motion should always have a structure. A basic
method taught in law school involves Issue-Rule-Application-
Conclusion or IRAC. This approach explains the issue at hand for the
reader, spells out the rule of law involved, how the rule applies or
should be interpreted then closes the document showing the reader
how to decide the case or motion. Rambling documents are quickly
rejected by judges who don't have the time to be interpreting what
they might mean.
Editing
Editing provides a chance to catch both minor and significant errors in
legal writing, especially when the first submission of a document is
the only chance to make a legal argument. Attorneys and their staff
are well served by always re-reading their documents and having a
second person do so as well to catch problems. This can help avoid
problems with a legal citation mistake, misspellings, logic errors,
grammatical problems or even erroneous omissions of detail.
The written word is one of the most important tools of the legal
profession. Words are used to advocate, inform, persuade and instruct.
Although mastering legal writing skills takes time and practice,
superior writing skills are essential to success. Polish your legal
writing skills through the simple tips below.
Every word you write should be tailored to the needs of the reader.
Documents that embody the same research and message may vary
greatly in content and tone based on the document’s intended
audience. For example, a brief submitted to the court must advocate
and persuade. A memorandum to a client must analyze the issues,
report the state of the law and recommend an appropriate course of
action. Always keep your audience in mind when crafting any piece
of writing.
4. Be Concise
Every word you write should contribute to your message. Omit
extraneous words, shorten complex sentences, eliminate redundancies
and keep it simple.
“Due to the fact that the defendant has not attempted to pay back the
money owed to our client in the amount of $3,000 it has become
absolutely essential that we take appropriate legal action in order to
obtain payment of the aforesaid amount.”
A more concise version reads: “Since the defendant has not paid the
$3,000 owed our client, we will file a lawsuit seeking
reimbursement.” The latter sentence conveys the same information in
18 words versus 44. Omitting unnecessary words helps clarify the
meaning of the sentence and adds impact.
Action words make your legal prose more powerful, dynamic and
vivid. Add punch to your writing with verbs that bring your prose to
life. Here are a few examples:
Weak: The defendant was not truthful. Better: The defendant lied.
Weak: The witness quickly came into the courtroom. Better: The
witness bolted into the courtroom.
Weak: The judge was very angry. Better: The judge was enraged.
7. Edit Ruthlessly
Edit your writing ruthlessly, omitting unnecessary words and
rewriting for clarity. Careful proofreading is particularly important in
legal writing. Spelling, punctuation or grammatical errors in a
document submitted to the court, opposing counsel or a client can
undermine your credibility as a legal professional.
Prepare a caption. Court rules state that every pleading should contain
a caption including the name of the court, the title of the action, the ile
number and names of the parties
Make your argument. This is the part of the brief where you present
your case. Analyze why the law supports the relief you are requesting.
Apply the law to your set of facts and cite to cases that support your
position. Generally, you should make your strongest arguments first,
followed by secondary relevant arguments.
Acknowledge the counter-argument. It won't help your case to ignore
any valid arguments that can be made by the other side. Address these
arguments and explain to the court why your case is different.
Distinguish any relevant cases that do not support your argument on
their facts. Conclude your brief. Tell the court what relief you are
seeking and ask for that relief
Punctuation Rules
Punctuation is a very important aspect of writing; good writing presupposes
correct punctuation. Incorrect punctuation is the sign of weak writing, or
carelessness. But this sort of thing is eminently avoidable, because punctuation
is quite simple to master. Here are some basic rules to keep in mind: