Saturday, December 13, 2014

Lawyers, literacy and legalese...

In recent times, the term 'Legalese' itself has become a derogatory word, often used with sarcasm and spite.  Some law firms proudly state that they use plain language with their clients and will not use legalese.  Globally, there has been a shift both in advocacy for its reduction as well as actual use by lawyers in practice.  But what are we reducing?  What is legalese?

Legalese refers to words and phrases that are used by lawyers to communicate terms of both dispute and agreement.  According to the Oxford Dictionary, the definition of Legalese is the formal and technical language of legal documents that is often hard to understand.

It is rare to hear lawyers say the old 'theretofore' and the 'Notwithstanding' language.   This is what lawyers think is legalese.  When non-lawyers are talking about legalese, they may actually be talking about what lawyers call plain English.

The problem is that some of the words used by lawyers and courts are so rich in meaning that they will, of course, be understood very differently from person to person.  Sure enough, there are some terms that could be replaced with terms that are easier to communicate with someone without the familiarity, but for most words and phrases, the 'legalese' words are exactly the correct words.

Take for example this excerpt from a Supreme Court Opinion: 

¶2 We conclude that, given the legislature's enactment of
Wis. Stat. § 180.1704 (1999-2000)2 and the prevailing Wisconsin
case law regarding choice of law, Wisconsin law applies in this
case. Primarily relying on the decisions of Boyd v. Mutual Fire
Ass'n, 116 Wis. 155, 90 N.W. 1086 (1902), and McGivern v. Amasa
Lumber Co., 77 Wis. 2d 241, 252 N.W.2d 371 (1977), we further
conclude that, in order for officers and directors to have a
fiduciary duty to creditors, a corporation must be both
insolvent and no longer a going concern. Because Beloit
Corporation was a going concern during the applicable two-year
period in which a claim could have been brought, we conclude
that its officers and directors owed no duty to its creditors
during that time. Given these conclusions, we do not need to
address the court of appeals' holding regarding issue preclusion
in this case.

Most lawyers would respond with, "sounds like a close case.  The officers and directors dodged some serious problem here.  I'd have to see the complaint and then check the cases and statute to see exactly what happened here."  Most non-lawyers would not know what this is about at all.  This however, IS plain English.

The words and the language lawyers use are so rich in meaning that this is the type of language that seems to be accused of presenting confusing language for only lawyers to interpret.  It is not only the words but the context of the words that create the unique language for lawyers.

In law school, students read thousands of cases.  In reading, they acquire this literacy for lawyers.  It may be the most important skill they acquire in their studies.  Having a lawyer skilled in literacy for lawyers can provide an advocate, a strategist, but possibly a translator of plain English.