Thursday, August 28, 2014
Iplead: ditch legalese!
When I first enrolled in law school, I struggled putting up with professors, classmates, and books that spoke a strange Jurassic-sounding language—legalese. I had been with the private sector all my life, ten years of which in the banking industry, and a short stint in the insurance industry as a self-employed, and I have not been a fan of this language, which I occasionally bumped into in my readings. I thought why the heck would you speak and write differently from how you would otherwise casually talk?
The point in both is clarity. Unless you purposely want to muddle your statement, you would use plain English. Since Freshman I have been resisting this pervasive persistence in using a language that not only had lost its currency, but has been a source of confusion and more controversy than resolution.
Sadly, while the Court has acknowledged the advantage in using plain English, its decisions promulgated contemporaneous to extolling plain English, prove it’s not that ready to abandon legalese, and is merely paying the audience some lip service.
But I was unfazed, I continued to refuse to talk and write like I had dinosaurs around me. I knew it was a gambit. Many still blindly believe that legalese identifies its users with the law, and those who believe otherwise fall out of favor with legal authorities, say the Bar Examiners in bar examinations. To them if you do legalese, you
evince show admirable esprit
I always thought not. I think legalese are from a long bygone era, and has no place in modern legal society. Those who think they can impress their clients with legalese, translating to fatter billing, underestimate their own clients. Average-educated clients don’t care about and don’t look for legalese, but are comfortable with lawyers who speak and write plain English because they understand what the lawyers are saying to the court, in their behalf.
Think about it, would you be comfortable and happy or would you instead be concerned if your lawyer talked in court in your behalf, and finished without you understanding what he said? What more you if you caught a glimpse of the judge looking just as confused? Can you imagine the torment of tirelessly wondering how you fared in court simply because your lawyer didn’t speak . . . plain English?
I dare to think more. I think sophisticated clients know a lousy lawyer when they see one. And clients see them often in legalese-tongued acts. If I were a client, I would take legalese as a lawyer’s ploy to hide his unpreparedness and incompetence. Why not come clean and plain? You certainly don’t want to get into costly litigation over a confused word or term simply because your lawyer could not resist his worn-out belief that legalese impresses.
One client said to an ipleader (what I call a lawyer who plain-english-advocate) “I appreciate it that you talk in a way that I understand, and I am sure the judge understood, as well.”
Another recounted “I felt insulted that my lawyer talked in court in hifalutin garbage, not because I didn’t understand, but because I knew he was talking nonsense. I fired him before he could explain.”
Despite the fact that law books, the internet legal vastness, and the practice overflow with legalese I strived to find like-minded individuals, and I did find them. Below, I share some of what they had to say about plain English.
To many of them, Bryan A. Garner is a common hero, but I have yet to get my hands on his book.
One of my favorites is a comment to a post:
Re: silly antiquated English pleading —I gained incredible respect for a (female) probate commissioner I met last summer, who said flatly, “no one is going to come or pray on any of my paperwork.”
Here is more, and with links to their websites:
"Legal Writing:Ditch“Here-and-There Words”" by Andy Mergendahl as carried in an article “Doclients expect legalese, and how should you handle it?” by Matthew Salzwedel.
“Garner’sList of Banned Words and Phrases (and one ofmy own)” by Matthew Salzwedel.
“Legalese” by Translegal.com.
"50Plain-Language Substitutions for Wordy Phrases" by Daily Wrtiting Tips.
“Simple,concise, direct: Pleading in plain English” by Raymond Ward
More useful sites, and your own:
"Capitalizationin Briefs to a Trial Court" by Melissa L. Greipp
"Rule on Writing Numbers" by Jane Stauss+.
"Please stop capitalizing every other word" by Sam Glover.