We Shall Overcome…. Legalese

Legalese — legal writing — is, more often than not, confounding to a person not trained in law. There is a reason it needs to be taught in law schools — no other education or experience prepares you to draft contracts or write briefs in the language of the law. And, that includes the people transcribing legal documents; legalese will be second nature to them thanks to years, or perhaps decades of experience. A layperson won’t have years to commit to something they would come across only a handful of times in their lives, even if contracts and legal documents are that important.

So why is it necessary to use legalese when plain old English is easier to understand? Let’s discuss the implications of legalese and try to see from the perspective of proponents and detractors alike. 

What is Legalese?

Legalese is a specialized form of writing employed by lawyers and other legal industry members to write and discuss laws, legal definitions, applicable terms, and other legal subjects. We’ve all had our run-ins with this notorious type of writing, especially when dealing with contracts and other aspects of life under the purview of law. Some of today’s legal writing complaints are using rarely-used words, writing twice as much as needed to explain a concept, and structuring sentences in a way that makes them overly long or difficult to comprehend. 

Here’s a particularly egregious example of legalese:

In accordance with the requisite stipulations articulated within Article VIII, Subsection (c)(ii) of the Amalgamated Compact for Interstate Commerce, herein referred to as the “Compact,” the undersigned party, hitherto denoted as the “Contracting Entity,” heretofore consents to and acknowledges the irrevocable delegation of fiduciary responsibility and corresponding entitlement to recompense, as established in Article XII, Subsection (a)(vii), to the designated Arbitral Consortium, henceforth designated as the “Consortium,” in contemplation of the dispute resolution mechanisms delineated within Article XV, Subsections (b) through (e). Said delegation is predicated upon the full spectrum of arbitration obligations, encompassing but not limited to arbitration fees, costs, and impartial tribunal selection, as delineated herein.

It’s quite an eyeful — all 110 words of it — and ordinary people might understandably become lost in the sea of hereins and heretofores and henceforths. But if you boil it down into simple terms, it just means that:

  1. The Contracting Entity is giving the (Arbitral) Consortium the responsibility to handle disputes, including shouldering the costs and choosing an impartial group to settle the disputes. 
  2. Upon signing this agreement, the Contracting Entity cannot change its mind about this decision. 
  3. Parts of a previously drafted agreement (“Compact”) apply here. Specifically, Article XII, Subsection (a)(vii), and Article XV, Subsections (b) through (e).

That’s it. No complex terms, three short sentences, 62 words total, and this can be shortened even further. But to be fair, writing “No backsies for Contracting Entity” in a legal document isn’t very professional. However, many people question the necessity of using archaic and complex words when discussing legal terms. 

All Those in Favor?

Legalese proponents (primarily lawyers, surprise, surprise) defend their position by outlining its benefits. According to them, legalese allows for more fine-tuned precision in discussing law, an industry that notoriously requires exactitude. This type of writing employs well-established and well-defined terms, including Latin phrases, that leave very little to interpretation when taken alone. In all fairness, this argument has its merits. Consider this short passage:

In the event of a default by Party A under this Agreement, Party B shall have the unqualified right to demand, within thirty (30) calendar days of said default, the immediate repayment of the principal sum of one million United States dollars ($1,000,000), along with accrued interest at a fixed annual rate of six percent (6%), compounded quarterly, calculated from the date of said default until the date of full repayment.

This piece of text details what would happen if Party A defaults. The stipulations are precisely stated, leaving no wiggle room. 

Another point is that legalese has been used in law for centuries, making it the traditional, accepted way. Lawyers have been training with the language subset for years. Laws and previous legal documents are in legalese, so it makes sense that current and future lawyers continue the tradition. Aside from that, enacting massive changes to a long-established procedure carries monumental implications. Templated legal documents are massive time-savers for contract lawyers and similar practices.

More superficial reasons for using legalese range from “it looks more official” to “it’s impressive” to “makes the legal profession more prestigious.” These, unfortunately, are stances that are very difficult to defend. 

We Shall Use “Will” or “Must” Instead of “Shall”

A growing number of legal professionals are actively pushing for more use of plain English in legal writing throughout the years. Even President Richard Nixon declared at some point in his presidency that federal laws should be written in layman’s terms to promote better comprehension. Several books, scholarly papers, and humorous articles have tackled the subject as lawyers try to explain to their fellow professionals how and why they should abandon legalese.

But what is plain English? It is, in essence, easy to read and comprehend – “English that emphasizes clarity, brevity and the avoidance of technical language.” In other words, it is English that non-professionals can understand. For technical writing, this might be termed “dumbing it down” for the audience. For lawyers, it means writing so clients can read or understand the documents without consulting them.

An article written by Carol M. Bast (appearing in the Florida Law Journal) argues that “the criticism of impenetrable legal writing is well founded, especially concerning ‘functional documents,’” defined as “contracts, jury instructions, and legislation written to be acted upon… because a reader cannot act on a document the reader cannot understand.”

Discussions about legalese are no longer limited to the writing style itself; now, even specific words are criticized (and with good reason). Especially contested words are considered “weak,” giving the impression that lawyers are not taking a strong stance on their statements. 

For instance, an article in the August 2012 ABA Journal by Bryan Garner (cheekily titled Shall We Abandon Shall?) argues that the word “shall” must be eliminated from legal writing and documents. He writes the word needs to be replaced with a “clearer word more characteristic of American English.” Garner also had his sights on other common legal words: shan’t and may also were already on the chopping block. Other contentious words or phrases include quite possibly, at best/at least, might be, seems to, appears to, perhaps, and so-called.

Other issues with legal writing that have been debated include using passive voice, “nominalizations” (turning verbs into nouns, then adding in an extra verb in its place in a sentence – i.e., reached a decision vs. decided), writing run-on sentences, redundancy (i.e., each and every vs. every), using too many synonyms, and the worst in my opinion – double negatives (not uncommon.)

A Canadian barrister and author of “A Model Plain-Language Act,” David C. Elliot, even proposed penalties for writing legal documents in an unclear manner, which included imposing fines, mandatory community service hours, or even requiring an offender to take writing courses.

A recent study by Martinez, Mollica, and Gibson found that even lawyers don’t fully understand it. The paper, entitled “Even lawyers do not like legalese,” claims that attorneys had difficulty grasping and recalling a contract excerpt written in legalese. For reference, they did better than regular people, but the fact remains that even lawyers are having trouble deciphering their own argot. 

In the same study, another group of lawyers was then asked to rate the legalese and plain English versions of the contract for overall quality and likelihood of the client signing the document. The result? Simplified contracts were preferable. They were easier to understand and no less enforceable than their convoluted counterparts, negating the necessity of overcomplicated legal writing.

Is Legalese Going The Way of The Dodo?

The movement against legalese is starting to gain ground. Many sources today promote the use of simple English in legal documents, emphasizing the importance of the client understanding whatever the lawyer places in front of them. Granted, this statement is a generalization as clients may have different levels of comprehension, but the core of the argument stands. There is no need to overcomplicate law and legal discussions for the sake of appearances. 

However, we must admit that legalese isn’t going away overnight. Or in a few months. Or even a few years. People have been trying for decades, and it’s still here. The tradition is so deeply entrenched in legal circles that it will take a sustained approach to change it. Perhaps newly minted lawyers can start incorporating plain English more and more into their work. Law schools can incentivize students willing to keep legalese down to a minimum.

Whether or not you choose to follow the call to simpler language or write “shall” in every place you can, it’s all on you. Just know that another option besides writing legalese is not only out there but also being heralded by other legal professionals.

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