Tuesday, 26 April 2011
CASE 266 - Legalese
Legal writing is a type of technical writing used by lawyers, judges, legislators and others in law to express legal analysis and legal rights and duties.
Legalese is an English term first used in 1914 for legal writing that is designed to be difficult for laymen to read and understand, the implication being that this abstruseness is deliberate for excluding the legally untrained and to justify high fees. Legalese, as a term, has been adopted in other languages. Legalese is characterized by long sentences, many modifying clauses, complex vocabulary, high abstraction, and insensitivity to the layman's need to understand the document's gist. Legalese arises most commonly in legal drafting, yet appears in both types of legal analysis. Today, the Plain Language Movement in legal writing is progressing and experts are busy trying to demystify legalese.
Some important points in the debate of "legalese" v. "plain language" as the continued standard for legal writing include:
Perhaps most obviously, legalese suffers from being less comprehensible to the general public than plain English, which can be particularly important in both private (e.g., contracts) and public matters (e.g., laws, especially in democracies where the populace is seen as both responsible for and subject to the laws).
Resistance to ambiguity
Legalese may be particularly resistant to misinterpretation, be it incidental or deliberate, for two reasons:
Its long history of use provides a similarly extensive background of precedent tied to the language. This precedent, as discussed above, will be a strong determinant of how documents written in legalese will be interpreted.
The legalese language itself may be more precise when compared to plain English, having arisen from a need for such precision, among other things.
Joseph Kimble, a modern plain-English expert and advocate, rejects the claim that legalese is less ambiguous in The Great Myth that Plain Language is not Precise. Kimble says legalese often contains so many convoluted constructions and circumlocutions that it is more ambiguous than plain English.
Coverage of contingencies
Legal writing faces a trade off in attempting to cover all possible contingencies while remaining reasonably brief. Legalese is characterized by a shift in priority towards the former of these concerns. For example, legalese commonly uses doublets and triplets of words (e.g., "null and void" and "dispute, controversy, or claim") which may appear redundant or unnecessary to laymen, but to a lawyer might reflect an important reference to distinct legal concepts.
Plain-English advocates suggest that no document can possibly cover every contingency, and that lawyers should not attempt to encompass every contingency they can foresee. Rather, lawyers should only draft for the known, possible, reasonably expected contingencies; see Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 34 (ABA 2002).
Regardless of its objective merits or demerits when compared to plain English, legalese has a clear importance as a professional norm. As such, lawyers, judges, and clients may expect and prefer it, although no client or judge has ever actually expressed such a preference publicly.
Black law dictionary is a good buy