Jun 23 2014

Wherefore I Hereinafter Expound on “Legalese”

In October 2010, President Obama signed into law the “Plain Writing Act of 2010.” The law was the latest response to decades of complaints about the incomprehensibility of many government regulations. An Executive Order subsequently signed by the president stated that federal agencies “must ensure that regulations are accessible, consistent, written in plain language, and easy to understand.”

Sadly, no such law applies to attorneys.

Not without reason, members of the legal profession have often been accused of using language that is inaccessible, unnecessarily stilted and complicated, archaic, and confusing. Throw in some gratuitous Latin, and what is often written or said by attorneys may as well be in another language entirely. There’s a reason that “legalese” is a word.

When clients come to me with questions or concerns about a legal issue, they are doing so because the matter may be complicated and the laws, regulations or other controlling authority may be difficult to parse and understand. If all I did in response to these inquiries was to simply regurgitate the complexities of the law in an equally incomprehensible manner, I would hardly be doing my clients a service.

As an attorney and counselor, I see it as a core part of my responsibilities to speak and write to my clients and to the courts in plain English, explaining things clearly, succinctly and in a way that increases understanding rather than obscures the issues. If clients can’t understand their lawyer, if jurors can’t understand the instructions they are given, if judges have to work too hard to follow the arguments, or if contracts or other documents are written in a way that leaves the parties wondering what it is they just read and signed, the attorneys have unnecessarily failed their clients.

Why does “legalese” persist? Robert W. Benson, a professor at Loyola Law School who has long been a leading advocate for “plain language” in the legal profession, explained it this way:

“Inertia, incompetence, status, power, cost, and risk are a formidable set of motivations to keep legalese. Their tenacity should not be underestimated. One observation must be made, however. These motivations lack any intellectually of socially acceptable rationale; they amount to assertions of naked self-interest.”

Young attorneys use “legalese” because they think that’s what attorneys are supposed to do. They have read so much in law school that was archaic, indecipherable, confusing, and formulaic that they are afraid they will not be considered “good” attorneys or will not be taken seriously if they do not perpetuate the use of such language. Older attorneys use “legalese” because it has simply become a habit. But who ever thought that “comes now plaintiff,” “the party of the first part renders unto the party of the second part,” or “assuming arguendo” was good use of the English language!

When you retain an attorney, you expect them to have the requisite knowledge and expertise to handle your matter. Sometimes it can be tempting for a lawyer to try to demonstrate the depth of their understanding of the law or justify their billing rates by using “legalese” or by turning what could be a three-page agreement into a fifteen-page magnum opus document that they may believe shows how much value they’ve added. But we are not paid by the syllable or by the paragraph, nor should we be. The true value of your attorney is in how well he or she advises you, protects your interests, gets things done for you, and accomplishes your goals. There is no reason that the way in which your lawyer does this should be impossible for you to understand.

A non-lawyer who knows a thing or two about writing, Stephen King, once said: “Any word you have to hunt for in the thesaurus is the wrong word. There are no exceptions to this rule.” For clients listening to their attorneys, any word they have to hunt for in the dictionary is the wrong word.

This article has been prepared by the Cohen Law Firm for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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