April 21, 2014
The last two posts in this series have focused on “legalese” and the proper use of it in your legal writing. Although I have a brief description of the term as I was going to be using it in the first of the two posts, there may still be some confusion over what I am referring to when I say “legalese.”
And here’s what I mean when I use the word: any technical legal terms – even if the term itself is commonly used by laypeople – that require some amount of expertise or training to understand in a legal setting.
For example, “intent” may not be normally regarded as legalese, but it suddenly becomes such when it’s used in the context of differentiating between “willfully” and “knowingly.” Then there are, of course, terms such as “fiduciary” and “assignment of rights” that are rarely used outside of very technical contexts.
Perhaps some attorneys don’t believe these terms to be legalese, but merely legal terminology that is required as part of the practice. “Legalese,” instead, means unnecessary Latin phrases, purely formalistic (and antiquated) language, and arcane adverbs like “heretofore,” “whereupon,” and “hitherto.” Perhaps, to these attorneys, the use of such “legalese” evokes images of a stuffy old college professor who is utterly lacking in social skills.
I’m not here to challenge anyone’s beliefs. But to the average layperson, I highly doubt that “omnibus” is going to sound meaningfully less mystifying than “pecuniary interest.”
In other words, it’s all going to sound like legalese if the reader lacks the sufficient background. And while the above, more frivolous legal language would certainly qualify as “legalese,” I have been writing this series of posts under the assumption that such language should always be avoided – because it serves virtually no other purpose than to obfuscate your writing.
So, lawyers talk in legalese. We have to, and that’s a big part of what we’re paid to do. It is part and parcel of the advanced technical knowledge that we must have to practice law. And it may seem so second nature to us at times that we sometimes forget that the average person has no idea of what something as basic as a “tort” is.
But as I’ll get into in future posts, legalese isn’t necessarily something that all lawyers and judges understand equally. There are different dialects for different areas of law, and some are far more complex than others.
The point of my posts is being able to translate the legalese as it appears in your brain into something on paper that is accessible to nearly anyone who reads it without losing the legal terminology necessary – so that your message is as direct and effective as possible.