Just like the wig and gown, the use of legalese as the official language of lawyers in the modern era remains painfully, a common law relic of a now bygone era. Like many extant legal traditions, legalese was once the accepted norm used in nearly all legal correspondence, documents, contracts, court pleadings and acts of parliament and subordinate legislation in all of Old Britain prior to the modern era but had since been devolved to the legal heritage of most jurisdictions (Nigeria inclusive) in the world today by dint of British colonial conquest. For most lawyers living at the time, legalese, was then as now, the in-thing and ever since, lawyers have clung to it as a sentimental American teenager might insist on keeping a well-worn item of clothing during spring-cleaning.
Having said that, it might be ideally apt to begin a topic of this magnitude especially one that attempts to critique a mainstream legal tradition (that might invite scorn and outrage) the many are quite taken with by first providing something in the way of a definition
So what does legalese really mean?
Legalese has been defined as a specialized use of vocabulary, phrases, and syntax that helps lawyers to communicate easily with each other. But in a derogatory sense, it has been understood to mean “legal terms combined in long-winded sentences, or varied or with permutations, with the initial design of legal or drafting precision but which otherwise add unnecessary complexity or inadvertently resulting in confusion”
In order words, it means communication that lay readers cannot readily comprehend because it’s cluttered, wordy, indirect and that includes unnecessary technical words or phrases.
Here’s a an example of a portion of a contract written in pure legalese
“it is hereby agreed that no servant or agent of the carrier (including every independent contractor) from time to time employed by the carrier shall in any circumstances whatsoever be under any liability whatsoever to the shipper, consignor, or owner…and…exemption, limitation, condition, and liberty herein contained”
With the definition out of the way, let’s now find out why so many critics have been so vehement in their opposition to the use of legalese in legal discourse.
While legalese remains the extant language of the law, there’ve been calls in many quarters that it be jettisoned in light of modern realities where its use in commercial negotiations might occasion undue confusion as between lay contracting parties.
These critics feel the incidence of legalese in nearly all legal transactions today is nothing but a strained and awkward ritual of necessity, of outright irrelevance and well and truly out of tune with the times. They therefore propose a more convenient, reader-friendly means of communication among lawyers in the use of the plain English which they see as a better alternative to legalese.
In recent times, these critics have put pressure on lawyers to abandon the unduly technical and tedious styles of writing employed in most legal writings for the plain English (modern, standard, English, that communicates directly with its targeted audience). To proponents of plain English, legalese as the only means of communication among lawyers is archaic and flouts the hallmark of good legal writing. For them legal writing style need not vary from task to task or audience to audience. Whatever lawyers write must be clear, correct, concise and complete (otherwise known as the 4C’s that describe good legal writing. For an example of a contract recast in plain English, you might want to look at our recent on legal writing for lawyers.
While the relevance of legalese is still a moot point still generating heated debate at the moment, very few among the many involved in this protracted debate are even aware of its actual provenance and how it is that law ever came to be overrun with these elaborate and overworked phrases and awkward Latin jargons.
So it might help us understand this debate better if we could trace back legalese to its very origins. And that we would do now.
So how did Latin maxims like Ubi Jus Ubi Remedium (for every wrong the law provides a remedy), Res Ipsa Loquitur (the thing speaks for itself) and the host of them floodlight the vocabulary of modern lawyers? To answer that, grab your mother box (assuming you’re also a big fan of DC comics) and let’s head back in time. Ready?
It all started in Old Britain, as I said earlier, In AD 43 after the Roman conquest of Britain. As a result, there was a sea change in the legal tradition of Britain when owing to the influence of the Romans, the Roman legal tradition usurped that of Britain. Thus, the legal language of Britain switched to Latin. It was around this same time that “latinized” expressions proliferated the legal lexicon. Examples of such expressions still used today include ad hoc, defacto, bonafide, ultra vires and the many more.
But after the departure of the Romans, the Anglo-Saxon invasion of Britain occurred and there was yet another change in legal tradition in Britain. This time, it was Anglo-Saxon law (Germanic Vernacular) that became the language of legal proceedings. However following the Norman invasion of England in 1066, Anglo-Norman French became the official language of legal proceedings in England for nearly 300 years. But as the years went by, Anglo Norman French developed into Law French from which many words in modern legal English are derived. Examples include property, estate, chattel, lease, executor and tenant.
Thus the mixture of Latin, French and English languages had quite an enormous influence on the English legal system and an ambiguity in communication ensured. As result of this emerging ambiguity English lawyers were unsure whether a French word had the same meaning as an English or Latin word. To avoid this confusion, they resorted to the use of pairs for greater emphasis.
Thus lawyers had to make use of pair of words from all three languages and this became quite a habit with them. Instances of such words used in modern legal parlance include “breaking and entering” (a combination of English and French), “fit and proper” (English/French), “will and testament” (English/Latin). Other examples of English only pairs include “let and hindrance”, “have and hold”. In the same vein, lawyers adopted the use of unfamiliar proforms to avoid repeating names and phrases. And in came the “of’s”, “unto’s” and “in’s” prefixes found in many legal jargons. Examples are “hereunto”, “hereof”, “whereof”, “therefore” and further derivatives including at, in, after, and before.
This was exactly how these ornate and convoluted jargons along with other inherited technical terminologies collectively termed as legalese intended to befuddle lay people found their way into the vocabulary of lawyers today.
Picking up from where we let off our critique to trace the development of legalese, everyone would agree that the use of legalese only in communications between lawyers as in drafting of pleadings and all court related proceedings is perfectly okay since it isn’t addressed non-lawyers but to only lawyers who themselves are skilled in it.
However, it’s doubtful if it’s use in certain dealings, say, drafting agreements intended for use by non-lawyers would aid understanding. To my way of thinking, it certainly won’t but would only serve to confuse and further leave lay readers and contacting parties in serious doubt as to their mutual contractual obligations. This could be a really serious problem.
It’s common knowledge that our courtrooms are inundated with cases of wrangling parties who due to this needless technicalization of contracts and agreements had signed sale agreements thinking it was a mortgage whereas it was an outright sale. If only these agreements were any clearer, as would be, if they were drafted in plain English, such disputes could have been avoided and court’s time saved.
It’s in the above scenarios that the criticisms leveled against lawyers using legalese seem evidently well-founded. Thus when dealing with the public, lawyers aren’t doing themselves any favor writing in legalese. No, they won’t communicate at all. Rather common sense demands that plain English or any such that communicates directly with its targeted audience be employed instead to avoid needless confusion. In order words, that there be no such use of flowery terminologies in documents targeted at non-lawyers where it appears they might not understand it. To do so would promote greater clarity in non-court related legal matters.
But it remains to be seen if lawyers would take heed to this call to abandon their stylistic common law heritage for the more simplified plain English. Sadly though, there appears to be no such incentive as yet. Because for most lawyers who lawspeak, abandoning legalese for plain English could mean a dramatic fall in the extra fees they charge for their unusually wordy and lengthy documents. It’s a well-known fact among legal draftsmen that all written documents do not attract the same fees. For them usually, the larger the words used in drafting, the higher the fees the documents attract. This is why so many drafters favor prolix and discursive forms of writing over plainer forms. So as far it involves losing legal fees, it would take a great deal of convincing to get these lawyers to give up their loquacious predilections.
But it’s only a question of time before we see any change in attitude.
A youngish lawyer with penetrating insight, Patrick Herbert is the Editor-in-Chief and founder of Lawstudenthub, a site dedicated to helping new wigs find their footing in a trickily slippery legal profession and stay current with emerging developments in the legal industry. He holds an LL.B from the University of Benin and a BL from the Nigerian Law School, Abuja.
To get in touch, follow him on social media.