Sunday, March 16, 2014

Why are legal papers and contracts written in gobbledygooky English?

Frankly, I tried to provide a balanced, dispassionate answer to the provocative question below by BonRuiz, a member of Jose Carillo’s English Forum, about the English of lawyers. But I’m afraid that my bias for plain and simple English still showed through when I attempted to justify legalese, the jargon that lawyers use to communicate with their fellow lawyers and other legal practitioners. It just seems to me that the profound tendency of legalese towards complexity and obfuscation doesn’t have a proper place anymore in modern-day society.

Question by BonRuiz, Forum member (March 5, 2014):

Sir, I hope you can enlighten me on why legal documents and contracts use too many unnecessary words that are not direct to the point and hard to understand? Is this a lawyer’s standard procedure so he can be the only one who can interpret and make money out of it?
Most legal contracts and documents are too wordy, not direct to the point and confusing (terrible grammar). Is this standard practice in law? Why can’t they make it simple and precise?

My reply to BonRuiz:

Your first question is why legal documents and contracts use too many unnecessary words, words that you say are not direct to the point and are hard to understand.

The answer is that these legal documents and contracts use a language that’s called legalese—the jargon or specialized language that lawyers use to communicate with fellow lawyers and other members of the legal community, particularly justices, judges, and paralegals. This language presumes that the target audience—whether readers or listeners—is adequately knowledgeable with legal concepts and the legal system. This is why to laypersons not equipped with or are not privy to this knowledge, legalese would read and sound much too wordy for comfort and, very often, beyond understanding and comprehension.

Your next question is whether the use of legalese is a standard procedure of lawyers so that only they can interpret the document or contract and thus be able to make money from those who need or have use for those documents and contracts.

I think that this is a very harsh assessment of the motivation of lawyers in writing or speaking in legalese. Here, from a lawyer who writes under the username WiseGeek, is I think a fair, levelheaded justification for legalese:

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.

In contrast, here’s a more candid justification for the complexity of legalese from a lawyer who blogs under the username SoMeLaw Thoughts:

Here’s one deep, dark secret about lawyers—we see risk everywhere. I can look at a picture of a man on a sidewalk and come up with a dozen potential lawsuits without batting an eye. And that’s before this hypothetical man crosses the hypothetical street. We lawyers spend years reading the most ludicrous cases you can imagine that involve chain reactions of people jumping onto moving trains, dropping bundles of fireworks that explode, and a concussive wave that tips over a large scale injuring a woman nearby (actual, famous case). It’s our job to see the worst potential outcome and help our clients avoid it.
 So when a client comes to an attorney and says “Hey, can you draft up some terms for my business so that we’re protected from lawsuits?” then the lawyer’s mind starts spinning like a rickety travelling carnival ride that was installed without inspection, has no safety restraints in the cars, and is operating at twice the recommended speed. Our minds are now racing to give our clients the best possible defense to a future lawsuit.
 That’s an important distinction—giving a defense to a lawsuit rather than preventing a lawsuit. Lawyers know that anyone can be sued by anyone else for anything. The question is whether the lawsuit has merit and will stick. Good terms and conditions will give you plenty of ways to dismiss the lawsuit with as little effort as possible, but you’ll still have to deal with the lawsuit. So that’s why these terms and conditions can run so long—they are trying to arm the company for a war that might come from the land, sea, air, space, other dimension, and in the case of some special litigants, parallel universes where your company is secretly in league with paranormal forces and therefore should pay the plaintiff one billion dollars. Drafting these terms are like packing for a trip when you have no idea if you’re going to Hawaii or Antarctica and you don’t know how long you’ll be gone…

Now, your third question is whether it’s standard practice in law to make most contracts and documents too wordy, not direct to the point, confusing—and also to have terrible grammar.

I doubt if it’s standard practice in law to deliberately and viciously make contracts and documents very wordy, not direct to the point, confusing—and also to make their grammar terrible. Legalese is, I think, simply the present-day outcome of centuries of overcareful, overzealous, overprecise, overwrought, and overbearing formulation, implementation, interpretation, and application of the law in evolving societies. It’s an arcane, stultifying language that generations of lawyers and other legal practitioners have not seen fit or bothered to simplify for clarity of expression and for easier understanding by laypeople. Indeed, for no better reason than convenience, modern-day legal practitioners still resort to and freely use many of the English-language legal templates and language quirks that date back to Victorian England and even earlier. They do so as if totally oblivious of the evolution of the English language in our Telecommunication Age towards accuracy, brevity, and clarity. I also think this is precisely why you’ve gotten the wrong impression that most contracts have terrible English grammar. Actually, on close examination, their English grammar would most often be aboveboard, except that their syntax and construction are those of a long bygone era, when those documents were still laboriously composed by longhand using quill and ink. In a very real sense, then, most contracts and legal documents today are composed by lawyers as if they are living in a time warp, making them—both the documents and the lawyers—sound terribly outdated, even archaic.

Your last question is whether it’s possible to make contracts and legal documents simple and precise. My personal answer is that, particularly in a democratic country like ours, it’s not only possible but highly desirable. In recent years, in fact, there has been a growing movement in North America and in the United Kingdom to use plain and simple English not only in contracts and legal documents but also in court litigation and in legislation, the better for laypeople to understand, appreciate, and follow the law as well as to assert their rights and fulfill their responsibilities as members of society. Read, for instance, “Lawyers Should Use Plain Language,” an article by Carol M. Bast in the Florida Bar Journal for a comprehensive discussion of the plain language trend and legislation in the United States.

Let’s just hope that the plain language movement and legislation will soon catch on in the Philippines as well.

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For a much richer appreciation of how legalese differs from plain and simple English, read:

then compare to:

1 comment:

  1. Lawyers use 8 words to say what could be said in 2, a fellow advocate of plain and simple English tells us (http://tinyurl.com/pstxgyp). That’s 400% longer English. Do you have any idea why they do that?

    ReplyDelete