Legal Writing: Why legalese is necessary and how to do it right

April 10, 2014

journal writingLaw school may have been the first time that you heard the term “legalese” – a colloquial term describing the body of formal and technical legal language that is difficult or impossible for laypeople to understand.

And not only did you learn about the term itself, you also learned how to speak in the language.

Now, you may have been cautioned, either during law school or after you graduated, about the dangers of using legalese, which usually had something to do with alienating the audience to which you were speaking.

As practicing attorneys, many of us may have become accustomed to speaking legalese without even realizing it, perhaps because our primary area or areas of law are so technical and complex, or perhaps because the vast majority of the people that we interact with on a day-to-day basis are also attorneys or other legal professionals who also understand and speak in legalese.

In case it weren’t apparent at this point, this article will be discussing the use of legalese, particularly in legal writing.

However, unlike nearly all of the other literature about legalese out there, this one won’t be telling you that it’s detrimental to your practice of law and that you shouldn’t use it.

Just the opposite: it’s very important for attorneys to be well-versed in legalese.  Regardless, as that literature that I’ve referenced will tell you, using legalese can have some serious downsides, and thus must be practiced with care (but it generally must be practiced nonetheless).

Although future installments in this series will tackle the use of legalese in specific contexts, there are some important tips we can offer in the use of legalese more generally.

And the simplest way of thinking about legalese and your use of it in legal writing is to visualize legal terms as part of an algebra equation.

Hopefully, you can remember back to high school to what such an equation looks like: in its simplest form, such an equation is x + y = z.  The values of “x,” “y,” and “z” are all variables that could represent any variety of possible values.

So, too, are legal terms much of the time.  The vast majority of legal rules and principles may be broken down into equations resembling those found in algebra (e.g., act + intent = crime).

As I’ve stated, in abstract algebra, the values “x,” “y,” and “z” can represent different numeric values, and nothing more.  In the context of the law, legal terms such as “due diligence” or “intentionally” also represent different values that change based on the facts of a given situation (e.g., in case X, what constitutes “due diligence” may vary from that in case Y).

There’s a key difference between algebra and the law here, though: “x,” “y,” and “z” have no meaning in the English language in these contexts aside from being a placeholder for another value.  Legal terms used in your writing, however, have specific definitions within the context that you’re using them.  And to make matters worse, they usually contain descriptors that may be sometimes misleading to a layperson.

Thus, at the outset of your legal writing, it’s important to clearly define the legal terms that you use.  Normally, a legal term is defined by a citation to a case or statute.  But you may often find that such definitions themselves contain legalese that may be inaccessible to attorneys not versed in that area of law.

Consequently, it’s good practice to provide your own “plain English” definition of a term after you have provided the citation.

Inherent in this approach, however, is the assumption that you are able to recognize legalese when you read it.  For lawyers constantly immersed in a specific field of law, certain terms of art may have become so commonplace that it has become part of their lexicon.

As such, it’s important to consciously look in your writing for any words and phrases that are not commonly used by the average layperson.  The key to effectively using legalese is to be aware of when you are using it, and take appropriate measures to ensure that it’s not having a negative impact on your writing.

But this awareness of your use of legalese shouldn’t diminish after you have defined your legal terms in the beginning of your writing.  Instead, you should help remind the reader of the meaning of legal terms throughout your writing.

This doesn’t necessarily translate into awkwardly inserting definitions where they don’t belong.  But you shouldn’t need to repeatedly provide full definitions to the reader once you have effectively classified the term at the outset.  Rather, shortened definitions hopefully used in the factual context of your case not only suffice to remind the reader of the term’s meaning, but also serve to effectively help the reader tie the abstract law into the actual facts of your case.

True, if handled incorrectly, using legalese can cause significant harm to the effectiveness of your legal writing.  But since using legalese is often a necessity, it’s vitally important to know how to do it correctly.

Next week, we’ll start getting into the effective use of legalese in specific contexts.