Out of Order

Legalspeak: An Endangered Species

By Nick Pro Tunc

The Clinton administration has ordered that the federal bureaucracy rewrite its forms and documents in plain English. Wisconsin has simplified its drunk driving Informing the Accused form. ¹ What's going on here?

That's what Judge Vance Speedo wants to know. Judge Speedo has accepted the prestigious appointment as chair of the American Bar Association's Legalese, Blather, and Gobbledygook Defense Fund (hereinafter referred to as "The Fund").² The Fund figures that the future of the legal profession as we know it is at stake.

"Today, plain English forms, tomorrow - plain English pleadings!" laments Judge Speedo. "Where will it all end? Laypeople will figure that they can do it themselves. Nobody will hire a lawyer."

The Fund is working hard to stifle the ominous trend toward plain speaking. Among The Fund's initial recommendations are the following:

Courts must use their inherent powers to sanction attorneys departing from traditional legalese, especially in the courtroom. An attorney who writes a plain and simple brief is treading on thin ice, but the average citizen probably is unaware of the attorney's indiscretion. On the other hand, resorting to comprehensible speech in the court is undignified and unprofessional. Such a practice will remove the majesty and mystique from the courtroom - it will be analogous to a judge ascending the bench in a t-shirt and cutoffs!

Imagine a judge beginning a legal proceeding by stating: "OK, tell the lady with the machine over there who you are," instead of "Counsel, enter your appearances." Or, a lawyer saying, "My client, Joe Smith, is here next to me," instead of "Mr. Smith appears in proper person." (Mr. Smith will be impressed by the fact that he is in "proper person" and, even better, will have no idea what mystical incantation his high-priced attorney has just uttered.)

Finally, picture a nightmarish scenario wherein an errant attorney says, "Whoops" or "I goofed" on the record, instead of employing the dignified, yet meaningless phrase "Strike that."

Cumbersome and archaic terminology must be restored. Whatever happened to "party of the first part" and "party of the second part"?

Such arcane phrases rendered legal documents impressive and lengthy. Clients figured they were getting their money's worth due to the document's sheer volume. A simple, single-page form might make the client think twice about the bill or the need for legal advice.

Worse, an easily readable document will cease to dazzle. Words like "witnesseth" at the beginning and "seal" at the end make a legal form the stuff of wizardry, beyond the ken of mere mortals.

Expand the evidence code. Among The Fund's proposals: double the number of hearsay exceptions and exceptions to those exceptions. Bring back the parol evidence rule, the rule against perpetuities, and the Statute of Frauds - not only are these rules difficult to fathom, their very names are lofty and enigmatic. Require that judges interrupt incompetent counsel who fail to object when murky rules of evidence can be invoked.

Hours of scholarly debate in open court over the hearsay exceptions alone will restore respect for the learned aspects of the legal profession. Laypeople will be dumbfounded by the grandeur and eloquence of the debate.

Foreign words and phrases must be utilized with greater frequency. The Fund's research discovered that many lawyers are hesitant to employ grandiose non-English legal terminology for fear of mispronunciation or misusage. The Fund encourages bar associations to conduct for-credit seminars in proper utilization of foreign phrases. Without such training, professional standards will start slipping.

For instance, one can envision a slothful judge saying something uncouth like, "Well, guys, it's time to pick the jury," instead of "Counsel, you may proceed with voir dire." Or, in a brief, a lawyer referring to "the case I just mentioned," instead of ante or supra. Before you know it, elegant terms like et seq. or seriatim will be a thing of the past. The Fund wishes to point out that membership in the Roman Catholic church started declining when the Latin mass ended. A similar fate may befall the legal profession.

In conclusion, The Fund emphasizes that the foregoing is a caveat (which, come to think of it, is another classy and endangered term). The Fund seeks not to alarm, only to elucidate and educate.

Remember, The Fund's aphorism: "Pedantry protects and preserves the profession."

Nick Pro Tunc is appearing today pro hac vice pro forma pro bono.

Endnotes

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¹See 71 Wis. Law. 8 (June 1998).

² Properly written legalese always involves the ponderous phrase "hereinafter referred to" or a similar catchy clause.