There is an ongoing debate over whether legal practitioners should use plain language in legal writing; or whether legal practitioners should carry on with tradition and write in a more lawyerly manner some call “legalese”.
As with any debate, there are two opposing sides and a middle ground. Proponents of plain language believe that since legal documents are read by both legal professionals and laymen, they should be understandable to a wide audience.
Proponents of legalese believe that since legal documents are primarily written for an audience of other legal professionals, the traditional style of legal writing is perfectly understood by its intended audience.
There is a long history of traditional legal writing that sounds important yet archaic to the modern ear. Words such as substantiate, elucidate, and notwithstanding are seldom found anywhere outside of a legal document.
There are also many phrases that are rarely used outside of a legal document, such as: “until such time as”; “render assistance”; “including but not limited to”; “owing to the fact that”; and “in the event that“.
Latin in Legal Documents
The use of Latin phrases is common in traditional legal writing. The precise meaning of the phrases is obscure to readers who lack knowledge of Latin. Latin phrases such as “habeas corpus”; “prima facie”; and “quantum meruit”; are likely widely understood only by legal professionals.
Other Latin phrases used in traditional legal writing, such as “ab initio”; “de facto”; and “ex post facto”; might be understood by a well educated audience as well as legal professionals.
The Boilerplate Method
Boilerplate language is another convention of legal writing. So-called “boilerplate” language is a grouping of words, sentences, and sometimes lengthy paragraphs that may have meaning beyond their plain meaning. For example, clauses in a property deed for a house contain language that has been parsed, defined, and argued for decades.
The precise meaning of each boilerplate clause is related to the definitions and arguments that accompany it. Boilerplate language refers to any language that is always the same and is perceived as standard wording, such as “standard contract” clauses. The term boilerplate originated in the days of hot metal type.
Publishers would use blocks of type that were made to be unchangeable, one sheet of metal printing plate with full paragraphs, clauses, or “standard” wording on it. These metal sheets resembled a plate on a boiler, and that is how the term came about.
Another convention of traditional legal writing is its repetitiveness. Personal pronouns, such as he, she and they; are generally not used. Instead the person's name is used each time. Or a person's position in a cause of action, such as defendant, plaintiff, respondent, or petitioner; is used each time.
Similarly, the word “it” is seldom used. Instead the word for the thing or the word for the idea is used each time. Descriptive phrases in traditional legal writing are also confined to the same descriptive phrase each time. For example, words used to describe a vehicle would always be the same words each time they appeared in the same legal document.
A red pickup truck would always be referred to as just that, “a red pickup truck”. The descriptive words would not be changed to “a Ford truck” even though the descriptive phrase could just as easily describe the same vehicle. This repetition can add to the density of legal writing and make it seem less clear, even while striving for clarity.
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Legalese I keep seeing the word - legalese - saying its a language. Is it a real language? I know this sounds dumb, I think I know what they're talking about, but …