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Vol. 72, No. 7, July 1999 |
Legal Writing
How to Use Legalese
You may use legalese without guilt, but only if you use
it to control meaning.
By Mary Barnard Ray
If this article began with "Avoiding legalese is important,"
you probably would think I was desperate for a topic, resorting
to that old saw. Legalese has been decried for decades and the
reasons for avoiding it have become familiar, if not always believed.
Therefore, this article posits instead four situations when
legalese is appropriate. You may now use legalese without guilt,
but if and only if you use it for one of the following reasons.
(You knew there would be a catch.)
1) Use legalese to keep out unwanted readers.
Whenever you want to make a document unintelligible to a nonlawyer,
use lots of legalese. This is similar to creating a security
code; only those with a codebook can extract the meaning. It
follows the same reasoning that creates:
'Ode Extolling
the Demise of Legalese'
In the Hereinafter,
There will be no "hereinafter,"
"Aforementioned," "aforesaid,"
or "heretofore."
When one word replaces seven,
We will know something of heaven
And live happily ever after, evermore.
With computers we can do it:
Replace "party of the first part" -
nothing to it -
With a term like "buyer," "trustee,"
"Mr. Glore."
We will simply name the thing;
Use one noun, one word, one meaning.
We'll eschew the legalese forevermore.
On that day, when rapture finds us,
Accurate meaning will be what binds us
To our craft: insight, not obfuscation
then to rule.
We will think, revise the norms,
No more be slaves to mindless forms.
Clear thought, not strings of words,
will be our tool. |
- teenage slang, like: Wut, My bad;
- secret passwords, like: I promised not to tell; and
- technical jargon, like: Opportunistic bidding inconsistent
with efficient use of resources could result from market power
due to system congestion and the geographic location of generation
owner's units.
Thus, if you do want to communicate something to other lawyers
without a client realizing what you are saying, lots of unfamiliar
legal terms should achieve your goal.
2) Use legalese to impress your clients.
This only works with certain clients. Actually, I have yet
to meet any clients who say legalese impresses them, even though
attorneys have often told me clients expect it. Quite a few clients,
however, have criticized legalese, often at length and with great
vehemence.
3) Use legalese when you do not understand what you are
saying.
If you really do not understand a legal point, you may copy
the language from a form book or other document. Of course, you
run the risk of eventually having a client, attorney, or judge
ask you to explain the point. You also run a risk of being wrong.
4) Use legalese to control meaning.
When no other words can convey the precise meaning of a legal
term, then you must use the legalese. Strictly speaking, this
would be using a "term of art" rather than legalese.
But this rule only applies when no other, more recognizable term
is possible. That eliminates the following terms:
Mary Barnard Ray is a legal
writing lecturer and director of the Legal Writing Individualized
Instruction Services at the U.W. Law School. Her publications
include two coauthored legal writing books, Getting It Right
and Getting It Written and Beyond the Basics, published
by West Publishing Co.
If you have a writing problem that you can't
resolve, email or send
your question to Ms. Ray, c/o Wisconsin Lawyer, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158. Your question
and Ms. Ray's response will be published in this column.
Readers who object to their names being mentioned should state
so in their letters. |
- aforementioned action (can be replaced with this action
or the name of the case)
- animo felonico (can be replaced with felonious intent)
- hereunto annexed (can be replaced with attached).
But some terms pass muster, such as "reasonable person,"
"negligent," and "consideration." Nevertheless,
the burden of proof falls on the writer here. When challenged,
the writer must be able to explain why another simpler term fails
to convey the same meaning. Mere statements that "it sounds
more professional," or "it is traditional" do
not constitute sufficient proof.
In an ideal world, none of the previous four conditions would
exist. In our less than ideal world, they may. Nevertheless,
in honor of that ideal world of the future, I offer you the accompanying
verse.
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