April 16, 2014
Last week’s installment of this series provided a general overview of legalese, and how to properly use it in your legal writing. And, as was promised last week, we will start getting into the effective use of legalese in specific contexts starting today.
First up is arguably one of the most difficult contexts in which to properly use legalese: the demand letter.
What makes the use of legalese in demand letters so thorny is the audience to which you are writing. I’ve gone into detail on this issue in a post a few weeks back, and here’s the short version: demand letters are drafted and sent in the very early stages of litigation or before litigation has commenced at all. And you may not even be writing to an attorney.
But if it won’t be an attorney that is reading your demand letter, wouldn’t you want to use more legalese? After all, heavy use of legalese can make a layperson unsophisticated in such vernacular feel intimidated and vulnerable – and perhaps more likely to agree to the letter’s demands.
Here’s the problem with such an approach (aside from any questions of ethics): this layperson, upon reading your letter riddled with legalese, will be more likely to bring it to an attorney for translation. If you’ve used legalese a bit too liberally, you may lose serious credibility in the eyes of the attorney reading it.
Furthermore, even if the layperson reader never brings your letter to an attorney, you still want to make sure that your letter is understandable to the reader. Too much legalese, no matter how well handled (as discussed last week), will create an unreadable mess in a document as (relatively) brief as a demand letter.
Then again, you don’t want your letter to be lacking in legal terminology. As stated above, legalese can be intimidating to laypeople, but that is because it has an air of authority to it: that the writer of such language has an understanding of some of the deeper complexities of the world than the average person.
Naturally, you’d want to have such an effect on the reader of your demand letter. Thus, the use of at least some legalese is recommended. But the trick is figuring out how to walk this tightrope between too much and too little legalese.
Every case is different, and the exact amount of legalese required in your demand letter will depend on a number of factors, such as the complexity of the type of law involved and the complexity of the facts in your particular case.
But there are some general tips that can be applied in nearly all situations.
First, if it’s possible to explain a certain legal term or principle without the use of legalese, do so. On the other hand, if you find your demand letter becoming longer and more cluttered because of such avoidance, you should reconsider using legalese to describe those principles.
Instead, try to explain those legal complexities in the simplest form possible, or avoid going into it altogether if possible. Clearly, you never want to cut out legal language that’s going to make your demand letter less clear in its message, but if you identify any legal language that can be avoided, either through the use of common terminology or because you don’t need to address those specific legal terms in detail, avoid using them.
As with its use in any medium, legalese must be handled properly, as last week’s post focused on.
If your demand letter contains enough legalese that the average person would know right away that the letter’s author is an attorney well-versed in the area encompassed by the letter, but not so much that it even resembles a treatise or law review article, then you’ve struck the right balance.
In other words, although a demand letter is technically a legal document, it should still read like a “letter” in the common understanding of the word.