By Anna Swift • September 06, 2017•Writers in Residence
Quick. Let's play a game called "Can You Spot the Legalese?"
Wherefore, in light of her cause of action sounding in negligence and for the premises heretofore considered, the plaintiff prays that this honorable court grant such relief as it may deem just, fair, and proper.
Did you count at least five examples of legalese just now? Congratulations. You have an eye for discerning legalese, which is literally defined by the online Merriam-Webster Dictionary (see https://www.merriam-webster.com/dictionary/legalese) as "the language used by lawyers that is difficult for most people to understand" (aka legal jargon), and you're in a good position for recognizing such language in your own legal writing. Recognizing legal jargon is important because, although many legal writers may be perfectly content with its use, other legal writers--like one of my past law school professors--would love nothing more than to see its certain demise. That professor's motto was always to "write the way you talk."
In all fairness, though, eliminating every form of legal jargon or legalese, which is also defined by the online Merriam-Webster Dictionary (see https://www.merriam-webster.com/dictionary/legalese) as "the specialized language of the legal profession," would be impossible and probably not what's literally contemplated by anti-legal jargonists. After all, if we accept that the term "legal jargon" encompasses all legal terminology (including, for example, the labels given to each party in a lawsuit), then legal jargon becomes a necessary element of legal writing, and eliminating all legal jargon would strip a piece of legal writing of its substance. Thus, while conventional legal jargon must stay, can the argument be made that antiquated or archaic legal jargon (like "Comes now [party name] and brings for his cause of action..." or "therefore") deserves to be phased out?
In my last column installment, I introduced the principle of creativity in legal writing; in this installment, I'll continue that discussion by focusing on the topic of legal jargon. Specifically, I'll shed light on its value to legal writing (both good and bad) by contemplating the pros and cons of legal jargon. (On a side note, the topic of legal jargon could be discussed not only in relation to creativity but also in relation to the principles of clarity, concision, or convincingness; the topic was left for now to highlight the often-overlooked principle of creativity.)
For legal writers who posses a predilection for the use of seemingly antiquated legal jargon (i.e., those in the "keep-antiquated-legal-jargon-alive-and-well camp"), arguments can be made for the continued use of such language. For starters, all forms of legal jargon, whether antiquated or not, help to characterize the legal profession in a way that binds lawyers together and help to demarcate the legal profession from other professions. Moreover, as with the many other rituals that lawyers regularly go through, the use of certain antiquated legal jargon (like ending a complaint with "Wherefore, ...") likely serves as a nod to tradition, and no doubt, traditions can act as powerful forces for maintaining the status quo in the legal world. Considering, then, that lawyers study the law, which is all about the special meanings and importance given to words, perhaps a certain amount of slack should be extended to legal writers who still find value in words that may be considered antiquated and who aren't quite ready to give up those words from their legal jargon arsenals.
Furthermore, if the goal of using antiquated legal jargon is to cause the intended reader of a piece of legal writing (such as a layperson) to acknowledge the legal writer's authority and expertise on the matter and to encourage the layperson to take the matter seriously, then the use of such language may be strategically correct. I myself can remember that, before I became trained in legal jargon, I felt intimidated when I first started coming across legal documents, and I treated those documents with utmost seriousness. At its best, then, the use of antiquated legal jargon may not only help to define the legal profession but may also send messages of authority to and demand respect from its readers.
But for legal writers who disdain the use of antiquated legal jargon (i.e., those in the "phase-out-antiquated-legal-jargon camp"), strong arguments can also be made in support of their position. After all, antiquated legal jargon has the potential not only to cause confusion for laypeople but also oftentimes probably causes other lawyers to scratch their heads (to see legal jargon at its most extreme, just check out judicial opinions from the early twentieth century and the late nineteenth century; those opinions, which I came across during the course of my judicial clerkship experience, are full of specialized language that probably only lawyers from those days would comprehend). The statement from my starting game may, for example, sound fancy, but if the statement results in a convoluted message, then all the fanciness in the world won't save the statement. Thus, at its worst, the liberal use of antiquated legal jargon may make a piece of legal writing confusing, dry, and stilted.
When viewed this way, the use of antiquated legal jargon seems like nothing other than a bad habit. Nonetheless, as discussed before, the use of antiquated legal jargon can serve to reinforce the seriousness of a piece of legal writing to its readers and to distinguish the legal profession even more from other professions that also have their own jargon. Consequently, legal writers should weigh all these considerations and keep in mind their writing goals when deciding whether to retain antiquated legal jargon.
In this column installment, I've continued discussing the principle of creativity by showing that antiquated legal jargon should be used (perhaps sparingly) by legal writers to accomplish particular writing goals instead of out of habit. As will be seen in my next installment, this doesn't end the conversation on creativity. Return next month to read about literalism and its place in legal writing.