August 28, 2013
The word “legalese” denotes obscure terms and phrases used only by lawyers. Legalese is acceptable for communications with judges and other lawyers but should be avoided in drafting contracts; the unfamiliar language creates an unnecessary hurdle for non-lawyer users who are charged with the responsibility of implementing contractual provisions. Opt instead for modern, plain language written on an appropriate level to be understood by the contract’s users. Technical terms can be used if necessary, particularly when definitions are supplied, but drafters should avoid legal jargon and phraseology that serves no real purpose other than to impress.
Excellence in legal drafting is measured by the utility of the contract to its user; the language selected should be based upon the linguistic sophistication of the person or persons who will receive instructions rather than the person drafting them. Words and phrases to avoid in contracts include the following:
- Legalese not used in normal conversation: Avoid compound words beginning with here-, there-, and where- as prefixes, such as hereinafter, hereinabove, hereinbefore, heretofore, thereunder, thereunto, thereabout, whensoever, wheresoever, whereupon, etc. should not be used in contracts except as a last resort. Also avoid pretentious words like aforementioned, behoove, forthwith, henceforth, thence, hitherto, whence, whosoever, within-named, and so on, which Reed Dickerson calls “gobbledygook.”
- Such, said, same: Standup comedy routines and caricatures of lawyers are filled with these words for a reason. Replace these stilted words with “the,” “this,” “that,” or “these.”
- Foreign phrases: Phrases like a fortiori, ab initio, ad hoc, arguendo, caveat emptor, ceteris paribis, cui bono, de die in diem, de integro, de lege lata, de minimus, erga omnes, ergo, erratum, et al, et seq, ex ante, ex post facto, facio ut facias, forum non conveniens, id., imprimatur, in extremis, in omnibus, in pari delicto, in personam, in solidum, in toto, inter alia, ipso facto, jus gentium, lis pendens, locus in quo, non sequiter, primogeniture, quantum meruit, res gestae, res judicata, sub moto, supra,vis major, and so on should not be used in contracts because non-lawyers are unfamiliar with these phrases. Use a plain language substitute instead