Wednesday, June 05, 2013

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (05): Avoid legalese

[1] Will Rogers, famous American comedian, on the way lawyers write:

The minute you read something and you can’t understand it, you can almost be sure that it was drawn up by a lawyer.

Then if you give it to another lawyer to read and he doesn’t know just what it means, why then you can be sure it was drawn up by a lawyer.

If it’s in a few words and is plain and understandable only one way, it was written by a non-lawyer.
Some of you may be offended by what Rogers said and say that he was just a comedian having fun at the expense of lawyers. But did you know that you can find Rogers’ statue inside the building of the US Congress?

[2] “The Decline and Fall of Gobbledygook: Report on Plain Language Documentation” (1990) by the Canadian Bar Association and Canadian Bankers Association Joint Committee Report:
“Legalese is a style of writing used by lawyers that is incomprehensible to ordinary readers.”

[3] Plain English for Lawyers” by Richard Wydick (Professor Emeritus of Law at the University of California - Davis; he has also lectured at the International Legislative Drafting Institute presented in New Orleans by the Public Law Center, a joint venture of Tulane and Loyola law schools):
We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas.

Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds our readers. The result is a writing style that is wordy, unclear, pompous, and dull.
[4] Elements of legalese, by Prof. David Mellinkoff from his book “Legal Writing: Sense and Nonsense” (1982):
  • Formalisms, such as comes now
  • Archaic words, such as hereby
  • Redundancies, such as each and every
  • Latin words, such as per curiam
[5] “Lifting the Fog of Legalese,” by Prof. Joseph Kimble, president, Thomas M. Cooley Law School, Michigan, USA; Burton Awards for “Reform in Law” Federal Rules of Civil Procedure (2007) and Federal Rules of Evidence (2011):
Legal sentences tend to be long and flabby.
More generally, legal writing tends to be poorly organized and poorly formatted. And in its effort to be precise and exhaustive, it becomes excessively detailed and too often sinks into redundancy, ambiguity, and error.
The result is legalese — a form of prose so jumbled, dense, verbose, and overloaded that it confuses and frustrates most everyday readers and even many lawyers.
[6] “Legalese violates nearly every principle of good writing” by Mark S. Mathewson, Director of Legal Publishing for the Illinois State Bar Association (Michigan Bar Journal January 2003)

[7] “Plain English: Eschew Legalese” by Judge Gerald Lebovits (faculty member of Columbia University - Law School, Fordham University School of Law, and New York University School of Law)

[8] US Supreme Court Justice Clarence Thomas on accessibility (from Bryan Garner’s interviews, Scribes Journal of Legal Writing Volume 13):
I’d love one day for someone at a gas station who is not a lawyer to come up to me and say to me, “You know, I read your opinion, and I don’t agree with you.” Wouldn’t that be wonderful? “I’m not a lawyer, I read your opinion, I understood it, I don’t agree with you, but thanks for making it accessible.” So we talk of it in terms of accessibility.
[9] Chief Justice Chan Sek Keong, third Chief Justice of the Republic of Singapore:
I noticed one difference in myself from having been Attorney-General for 14 years. I am not able to write and express myself in the same way as I did 15 years ago. I read one of the judgments I wrote 15 years ago and thought I couldn’t write in that way today. After 14 years as a legal adviser to the Government, I had got into the habit of writing concisely and going straight to the point. I think I might have lost the knack to express myself in a literary style. Government minutes are written in plain English. Now, I try to use short sentences to capture all my ideas and arguments. I can’t go back to my old style, and I am not sure that going back to it is right. I think that Court of Appeal judgments should be expressed in language that a reasonably-educated layman can understand.

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