Legalese

Question

I wonder why so many people, when writing about english legal language, mention legalese as the biggest problem of it and predict that it will soon cease and will be replaced by plain English. I don't think that legal language should be simple and appropriate for the general public for certain reasons:
1. legal rules never exactly have the same meaning as their written form - they are altered and accurated by case law and commentaries, so it is useless to write them in simple form because laymen will nevertheless not understand its real meaning.
2. every profession has its own vocabulary that helps them to express their ideas by saying few "slang" words that explaining the whole procedure in five sentences to be simple and comprehensive. No one asks medicals to stop using latin words.
3. let us be honest - we lawyers are being paid for translating legalese into plain English. Why would someone ask the lawyer to draft his contract if he himself understands what he really wants to include in the contract.

I hope this heretic idea would be provoking enough to emerge a discussion

Jon Salt · Accepted Answer

I'm just a layman, but isn't the payment of lawyers the whole point? We don't want to pay you, so we dislike legalese. That doesn't mean legalese is going to disappear, you lot will make sure it doesn't, just like the jargonauts of any other wealthy profession. It doesn't matter too much if people don't understand medicine, but law is supposed to be understandable so that we all know if we are breaking it or not. I don't suppose that matters to you, the more crime the more cash, right?

Anonymous · Answer

The point is that the law is not being complicated by lawyers. Look at the statutes, they are written in a complicated style not because of lawyers but because of legislators. On the other hand, when provisions of the statute are written too simply (let's say plain), it causes even more trouble because they do not clearly define rights and obligations of persons and therefore case-law must accurate its real meaning by lots of decisions. Do you think that the simple construction of the sentence makes law simple?
It is problem that people treat lawyers as those who should "repair" the relationships which are not in accordance with law. Very few people visit a lawyer BEFORE they want to create a relationship and ask about its proper construction. They only come "ex post" - at the stage when there is a problem and it has to be solved.
On the other hand most people do not build a house by themselves (and visit them only when there is a serious problem in the construction) but ask builders to do it for them because they want to have it done professionally. You also visit a dentist regularly to check your teeth and not only when it really hurts.
If people came to lawyers when concluding a contract, they would not pay such large sums to them as they pay when the contract is subject to a judicial proceedings.
Lawyers (or most of them) do not do their job only for cash, but because they feel it is necessary to help people. But you must also understand that it is more complicated for them to "repair" a relationship that was construed improperly (because the contract was elaborated by laymen) than to create a "perfect contract" and care about it continually. I can say that the first case will be much more expensive for the client than the latter.

Jon Salt · Answer

The legislators, or their underlings, train in law as well perhaps? Perhaps the people who write legislation have a vested interest in the status quo as well?

Although there may be many cases where plain English has not been specific enough, and I'm sure it would have to be nastily long winded, I am sure plainer English could be used for any legal document. Of course, if you absolutely avoided any legal jargon it might end up horribly long-winded, and "jargon" is hard to define, but still, there ought to be attempts made to make law as clear as possible to all. That is obvious, and I do not think I have heard that any such attempts are in fact seriously made. Simple sentences may not make law simple, but legal documents are currently basically in a foreign language.

Lawyers both draw up and repair contracts. Some are very moral, others not. Often people may not use lawyers very wisely. None of these things is very relevant really.

Like policemen and doctors, lawyers may be good, useful people, but in a perfect world there wouldn't be any. Society at large has to try and find ways to make you less useful!

Lawyee · Answer

1. It would be very romantic to think that legislators (including those trained in law) pay attention to interests of legal professionals when enacting statutes. I am sure that no lawyer would say: "Please construe this sentence more vague, so that disputes will emerge therefrom and I will have more work." There are higher interests that influence our legislators - lobbistic groups from industries and business - not lawyers themselves.
2. There were attempts in the communist area of Europe in 70's and 80's of 20th century to avoid long contracts which were complicated because this was a sign that "imperial powers were trying to cheat comrades". As a result there was a short era (till the crush of communism) where one-page-contracts were very popular. This ment that if you write a contract not exceeding one page, you are trusting your comrades and do not intend to cheat them... This era resulted in hundrets of judicial proceedings where courts had to "construe" the contract themselves to resolve the dispute because there was nothing legally worth on the paper... Would you like to try it?
3. Certainly, there is an attempt nowadays to simplify legal English - it is called "plain English movement" in common-law countries. As you may have realised, I am not a big fan of it (btw. the previous "anonymous" mail was mine - I just forgot to sign up).
4. I don't know what the perfect life would be like. If it means that there are no quarrels or disputes between people, I am sure that there will live more lawyers than you think. In fact, this means that people will predict all possible problems at the time they create a relationship and resolve all possible problems at that time. Laymen are in general not used to do it this way - maybe in a perfect world they will realize how to cope with lawyers.
5. I have enough of this myth about lawyers as cruel, mean and tricky people who only want to make a cash from your problems. These people are in every profession, but thank Lord, they are only a minority. By a strange coincidence, people have decided that these villains are all practising law... Let us stop creating a world of "US and THEM". I challenge the members of this Forum to write their personal experiences with lawyers to find out how the lawyers are really appearing to public!

Anonymous · Answer

The communists made a PC driven muck of everything, and a "one page rule" would be a bad start, because the only way to avoid jargon is to use a lot of words, as I said.

Most educated people, I guess, are aware of the plain English movement and approve of it without knowing the details well. What concrete moves have been made in this direction in the west? I never heard of any.

It isn't a question of "us and them" or lawyers being baddies, but you can't expect lawyers to unemploy themselves. If it is to the advantage of society to have less lawyers (and numbers are large and ballooning in the U.S at least, I hear) then the rest of us will have to do something about it.

Lawyee · Answer

This is quite popular topic on internet - just type "plain English" and you'll see how many sources will you get. One for all: http://www.plainenglish.co.uk/.
To summarize, these people try to substitute certain words with their descriptive (and sometimes - but not everytime) longer version, to reformulate sentences to make them easier to understand and so on.
If you are really interested in it, I can recommend you a book from Richard C. Wydick - Plain English for Lawyers. I have read more books relating to this topic, still I consider this idea useless... By the way - for what purpose would this Forum exist otherwise?

Anonymous · Answer

Rather than recommending that I fork out for a book - very lawyerish of you - why not continue the debate? I have a google search engine at the ready, and I can look up anything I want, anytime. I already agree with what the plain english people say, so why send me there? I want you to explain why using simpler legal language that does not exclude most human beings would not be a good idea. Not only is the language of law full of sometimes unecessary jargon, it is written in a bizarre and archaic style.

Feebs11 · Answer

The internet is not the best place to research legal usages. It is much better to go to the books that are not generally available online.

Lawyee · Answer

Being a lawyer implies that sometimes people do not understand what you say - that may be a problem here. I am not rejecting a discussion - you asked to provide some examples of plain English movement and I did so. There's no reason to write into this Forum what you can easy find by yourself, so I just wrote some sources...
Back to the main point... People sometimes do not want to understand that if two sentences seem to be resemble, they can easily mean something else. If I write
THE INVESTOR IS OBLIGED TO DISCUSS WITH THE OWNER OF THE PROPERTY ABOUT THE PROPOSED CHANGES TO BE MADE ON THE PROPERTY, it does not mean what people usually think. Laymen will probably think that the owner must first approve the changes and the investor can thereafter perform them. But this is not a case. The investor's duty is only to inform the owner about the changes and explain them but even though the owner would disagree with them, the investor can perform them.
What I wanted to say by this simple example is, that the language of law is different from the usual language and the attempt to transform the language of law into the common language would cause misunderstandings.

Anonymous · Answer

If that is in fact the legal meaning of your example sentence, then it is a direct contradiction of what the sentence usually says. It is unnecessary for the law to do this, speak with forked tongue, and to be jargon rich and archaic also. I have seen the plain english people "translate" legal documents, and I see no reason why it should be impossible. You have given no valid reason why, beyond a daft one page rule. You started the discussion, so the onus is on you to provide an example that cannot be translated into plain English. (or at least a link to a decent website which does just that).

You won't though, because everything can be expressed in simple English, given enough words. Otherwise, nobody would ever successfully learn the legal jargon in the first place.

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