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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“.
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.
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.
Plain language, most simply defined, has to be just that, readable for the widest possible audience. Plain language does not seem to rely on multi-syllabic words when a shorter word will do. Words such as substantiate, elucidate, and notwithstanding can be replaced with prove, clarify, and despite.
Some common phrases used in traditional legal writing have a concise plain language substitute. “In the event that” translates easily to “if. “Until such time as” means “when”. Plain language in the context of legal writing means using a translation of the Latin word or phrase, rather than the more scholarly sounding Latin.
Proponents of maintaining a traditional style of legal writing believe that continuing to use the traditional conventions, Latin phrases, and boilerplate language preserves legal culture. The use of Latin phrases adds a certain panache to writing, and some of the Latin does not translate very well. Few individuals outside of the legal profession will ever read a Supreme Court opinion.
The process of legal argument, legal reasoning and legal writing are so intertwined that it sometimes becomes difficult to express legal opinion except in traditional legalese. In fact, for attorneys the use of traditional legal writing is more efficient because it is most commonly used; therefore, most commonly understood; understood by attorneys that is.
The conventions and tradition in legal writing are much more than meaningless archaic language. Legal documents are written for specific legal situations. Sometimes legal language is purposely broad and imprecise so that unknown and unforeseeable future circumstances may somehow be addressed.
Other wording is precise and well defined to clearly define the expectation of both parties, like the wording in a contract. A contract may have many clauses and if they can be simplified by using traditional standard language then all the better. It is after all, attorneys, communicating with attorneys.
Proponents of plain language in legal writing claim that much of so-called traditional legalese is nothing but gobbledygook. Legalese is jargon and is used to obscure meaning. Webster's Dictionary defines jargon as “confused, unintelligible talk; the special speech or vocabulary of a class, as of technicians, artists, thieves.” (Webster, 1987).
In fact, the purpose of jargon among members of a group is to communicate among themselves without being understood by outsiders. Police and criminals each have their own jargon, hoping the other will not understand them. The goal of jargon among legal professionals may be so that the public will not understand the law. If the public cannot understand the law, because the public cannot understand the vocabulary then the public has no choice but to seek legal advice to interpret every legal document. So, legalese becomes important to attorneys as job security.
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