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.)
'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.
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:
- 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.
Wisconsin
Lawyer
