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Sunday, April 18, 2021

Legalese – Everything you Need to Know

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If you’re going to be a lawyer then at some point you’re going to have to come to grips with legalese.


Hopefully that’s not because you intend to actually use it in your own practice. Unfortunately, the odds that your colleagues will always communicate sensibly with you are extremely slim.

Similarly Judges, older lawyers and those who simply think that legalese is cool will all start throwing around stupid phrases like “post hoc ergo propter hoc“. Instead of just nodding and hoping nobody asks you to explain, it might be useful to know what some of these phrases actually mean.

As you read older contracts and documents, letters and engage in conversation with people – you’re going to come across legalese in many forms.

So with that in mind, let’s explore the topic in excruciating detail so that you can make your way through the day without getting bamboozled.

There is no criteria on the law school exam called “would the client read this or throw it in the bin”

Legalese Definitions – Good, Bad and Ugly

First, let’s throw a terrible definition in the bin. Merriam-Webster has decided to go with this:

the specialized language of the legal profession

This is a dumb definition of legalese for a few reasons.

  1. much of what makes up “legalese” isn’t related solely to the legal profession
  2. it makes it sound like it’s a good thing by using the word “specialized”
  3. it fails to indicate that legalese often can’t be understood by anyone born after 1895

What we really need is a definition of legalese that says, or at least hints, that legalese is the domain of lawyers who don’t know how to communicate properly.

This one is from Dictionary.com (yeah – I know it’s not the world’s greatest…)

language containing an excessive amount of legal terminology or of legal jargon.

OK now we’re getting a bit closer – at least the negativity is obvious in this definition. My only problem here is the statement, again, that it’s “legal terminology” or “legal jargon”. As you’ll see, we can break into legalese very easily without even using legal terms at all.

This one I wanted to include from thefreedictionary.com because it cracks me up:

The specialized or technical language of the legal profession, especially when considered to be complex or abstruse.

Why is this so funny? Because it uses the word abstruse! The irony clearly didn’t strike the editors of the American Heritage® Dictionary of the English Language.

My favourite definition of legalese is probably the one from the Cambridge Dictionary:

language used by lawyers and in legal documents that is difficult for ordinary people to understand

In the absence of anything better, let’s run with that!

Where did Legalese Come From?

I guess this is a good place to start.

Unless Wikipedia has lied to me, the basic development of legalese happened like this:

  • countries have laws
  • those laws might be rendered in different languages than the people speak (eg Latin)
  • as a result, only learned lawyers could actually understand the laws
  • because they are so learned and comfortable with it, they use that formal language as part of their normal communication
  • nobody else understands them.

That’s basically it.  In English history terms you can track through how the Roman influence caused laws to be written in Latin.  This meant the lawyers had to learn the language. However, “old English” was the language used for actual legal argument, despite the laws being written in Latin for some time.

After that, the Norman invasions began and so the legal language shifted over to Anglo-Norman and then to French, which is why many words in legal English we use now are actually derived from the French language.

So the guts of it is this: current “legal English” is a mash of old English, Latin and French.

You can see why people can’t understand us if we throw that kind of stuff at them too much, right?

Where do we Find Legalese?

The reason I ditched most of the definitions above is simple: they didn’t cover the field well enough.

We can find legalese everywhere, but most often we’re going to see it crop up:

  • in Judge’s decisions
  • in formal letters, particularly advices
  • in older legal documents
  • in some jurisdictions where the formal Court documents are still in “ye olde English”
  • from non-lawyers who are trying to “sound like a lawyer”

Judge’s Decisions

This is a bit of a mixed bag, because some Judges have started writing in a far more approachable tone than others.

However, think about what Judges have to do: they make conclusions about evidence, consider the law, deal with submissions and then make a decision.

In light of how much legalese exists in what they are digesting and sifting through, it’s not too surprising that a bit of legalese seeps through into their decisions.

Beyond that, many Judges are from prior generations where legalese was simply the normal way that lawyers communicated – we’ll see if that changes in the future.

Formal Letters

As I explain in more detail below, what we see a lot is that lawyers who can speak perfectly normally then go straight into legalese when they start writing a formal letter.

Distinguish this from an email or a text message which come across in straightforward language. When we go into “formal writing mode” all of a sudden we feel a compelling need to write in ways that we would never do elsewhere.

Strange, isn’t it?

Older Documents

That’s just how it was done, back in the day. If you’ve read my section on the development of legalese above, then you can understand why.

Formal Court Documents

I recently had occasion to read some documents from an Irish Court, and it became very obvious that the Irish system was still caught up in very old styles and language.

Court documents are often the last to be updated to avoid legalese, even when lawyers (who are not exactly fast moving as a profession) have gone beyond that style of writing.

I honestly think this is less a deliberate choice, and more just because the Courts are so overworked and underpaid that this particular job is not on anybody’s radar.

Trying to Sound Like a Lawyer

I always find this one a bit funny.

Lawyers spend hours and hours trying to avoid sounding too “lawyery”.

Non-lawyers, when they want to write a “hard hitting” letter try to make it all convoluted and technical so that they sound “like a lawyer”.

Unfortunately the result is normally a disgusting mess of big words, long sentences and phrases that people don’t understand.

Not usually as hard hitting as the writer would hope.

Why do Lawyers Write in Legalese?

Given how common it is, you would think that lawyers have a class in law school on “how to write in legalese” – but that’s actually not where it comes from.

Here’s what happens: lawyers go to law school.

In law school, you do a lot of reading. Most of that reading consists of:

  • text books
  • laws (statutes)
  • cases and decisions

Many of those things are old – in particular the cases and decisions.

As a result, the young lawyer’s brain over time decides to itself “ah huh – THIS must be how I should write if I’m a lawyer – because all these other people are writing like that”.

They (we) then begin writing in the style that matches what we’ve been reading.

Once we start writing that way, it doesn’t really matter – because nobody cares about that kind of thing in law school. We are not graded on whether we have written in a way resembling something a human would write – we are marked on whether we have technically answered the questions.

There is no criteria on the law school exam called “would the client read this or throw it in the bin”. As a result, we figure that we’re doing just fine, keep writing the same way, and voila – we have just developed the habit of writing in legalese.

Why is Legalese Bad?

This is a fair question – I mean, why should we care if we’re writing in legalese? After all – we’re lawyers!

Firstly, legalese is lazy writing. As I mentioned earlier, legalese is what our brains have been taught to do by default, rather than something we have chosen to actually use. It is, in fact, easier to just punch something out the door in pure legalese then it is to write a sensibly constructed piece of writing.

Second, using legalese makes you look pompous. Of course, you might actually be pompous, but that doesn’t mean you should be proud of it. If the readers of your writing (especially your own clients) think you’re pompous then they are going to start making assumptions about you, your intentions, and your character. Don’t underestimate how much people will read into what kind of person you are just be the way you write.

Third, legalese is hard to read. As you can see in my legalese examples here, things written in legalese are much harder to read. The result is that your hard work might not achieve its intended purpose if your recipient can’t easily follow your reasoning. If I am trying to read your letter and I keep having to google words like “otiose” or “prima facie” that you decided to leave in, then I’m going to get distracted, frustrated, and confused. I’m also going to feel like I’m stupid because I can’t understand your letter, and that’s unlikely to do you any favours if I’m your client – because feeling stupid will make me angry, and there’s a good chance I will just phone you in a huff to ask what the answer is.

Some Legalese Examples

The thing with legal writing, in particular for young lawyers, is the strong desire of the lawyer to communicate their knowledge and expertise to the other party.  In a sense this comes from a desire to build trust – after all, if only they knew how damn smart we were, they’d have to trust us with their legal work, right?

As a result it is natural for us to want to bombard our clients with a view to impressing them.  Their inferiority is sometimes not apparent as it should be, and so a demonstration of our superior intellect and writing prowess is called for.

Of course, legalese is not restricted to the pen – the advocate with oral submissions can take on the characteristics of even the most profound written wordsmith.

Through these mechanisms we have, through history, secured ourselves the position of a respected and learned profession.

Either that – or we’ve secured ourselves a position as pompous blowhards.

Legalese Example 1 – Turning A Normal Letter Into Legalese

It’s all relative, of course, but if you apply these same principles you can easily double or triple the length of your correspondence.  Every extra word you add helps to develop your legalese, so let’s embrace the process by using as many commas, modifiers and split infinitives as possible.

We’re going to take a delightful little sample of legal writing and turn it into an awesome powerhouse of legalese:

Start With This

Dear Bob, 

We act for Jane.  

We have a copy of your letter dated 4 May 2014 and will respond shortly.

Yours faithfully,

Plain English Lawyers

With a Little Work, Becomes This

Attn: Robert Roberston esq, c/- Roberts and Roberts Associates,

This firm and, in particular, the writer (who has carriage of this matter), have recently received instructions to act on behalf of Ms Jane Janeson in relation to the matters set out in the subject line above.

During our initial conference with her, Ms Janeson has provided to us a copy of your correspondence issued on 4 May 2014 and received by her on 6 May 2014, which we are presently reviewing.

Following the completion of our review and consideration, and the taking of further instructions from Ms Janeson, we will revert to you by way of further correspondence.

We remain, dear sir, your faithful servants,

Eagle, Concord, Badger, Unicorn and Smith

Legalese Example 2 – Latin

Nothing screams “I’m writing in legalese” quite like the odd Latin phrase thrown in for good measure.

Of course, we have to be a little careful in our judgment here, because there are some technically latin words like “affidavit” and “caveat emptor” which have really become words that have an English meaning. As these words become more prevalent in the legal system they are probably less “legalese” and more just “legal English”.

Here are some core latin legalese phrases that seem to creep in when lawyers decide to write things (in no particular order):

  • prima facie – I’m sure you’ve heard of this one, and it’s probably one of the first pieces of Latin that lawyers become exposed to. It means “on the face of it” but is usually used in connection with whether someone, absent a defence, can make out a case against the other party.
  • nunc pro tunc – this one usually comes up in terms of fixing things as if they had never been broken.  It means “now for then” and crops up if you need a Court to fix an earlier order or decision in way that makes it apply from the original date, rather than just the date it was fixed.
  • void ab initio – I’ve had some pretty hilarious (and wrong) uses of this one levelled at me over the years. Basically it means “void from the beginning” (void being one of those “not really latin but still latin” words). It’s a legal fiction where something is declared to be completely obliterated from history as if it had never been done, and everything that happened as a consequence of it has to be undone. It’s usually more straightforward than it sounds.
  • mutatis mutandis – Every time I hear this one I get the some “hakuna matada” in my head from the Lion King… It means “with the necessary changes” and usually comes up in contracts.  For example, you’ve written a gigantic clause and now want to repeat the entire thing but for a different party, you would say “Clause 6.4 applies, mutatis mutandis, to Party Y.
  • consensus ad idem – I blame contract law lecturers for this, because they insist on using it when teaching how contracts are formed. It means “meeting of minds” and is generally accepted as being a requirement for a contract to be formed – that the parties had agreed to the essential terms and were both of the same mind about what the agreement was.
  • bona fide – it means in good faith (surely you new that?). Unfortunately people still use it despite the fact that “good faith” is pretty easy to say instead as a direct replacement.
  • nemo dat quod non habet – the property lawyers claimed this one some time ago (although the principle is becoming eroded). It means you can’t sell what you don’t own, and used to be a basic principle of property law.

Those should keep you going for now. This isn’t designed to be an exhaustive list but an introduction to a few examples of legalese when Latin is involved.

Legalese Example #3 – Crazy Clauses

For this example of legalese I’m going to show you how a straightforward clause can become mangled.

Normally it’s because of bad planning, and “bandaid drafting”. The clause wasn’t well thought out to begin with, and then as it got revised nobody bothered fixing it properly.

So the progression might go like this:

  1. Party A may sue Party B for damages if Party B breaches this contract; becomes…
  2. Provided that Party A has complied with the terms of this contract, Party A may sue Party B for damages if Party B breaches this contract; becomes….
  3. Provided that Party A has complied with the terms of this contract, Party A may sue Party B for damages if Party B breaches this contract without limiting the rights that Party A might otherwise have at law; becomes…
  4. Provided that Party A has complied with the terms of this contract, Party A may sue Party B for damages if Party B breaches this contract without limiting the rights that Party A might otherwise have at law, but only if Party A notifies Party B of its election to to do so pursuant to clause 7; becomes…
  5. If Party B fails to remedy a breach of this contract within 7 days of receiving written notice from Party A, and provided that Party A has complied with the terms of this contract, Party A may sue Party B for damages if Party B breaches this contract without limiting the rights that Party A might otherwise have at law, but only if Party A notifies Party B of its election to to do so pursuant to clause 7

As you can see – the elements of the “finished” clause are all sensible because the original clause was deficient. However, by simply tacking on concepts left and right, the drafting becomes mangled and the clause becomes a beautiful example of legalese for the history books.

How can you Avoid Writing in Legalese?

Excellent legal writing takes work. You have to deliberately and consciously devote yourself to improving your legal drafting skills.

Other than identifying that it’s a bad thing, there are some simple tips you can use to avoid accidentally slipping into legalese:

  • write shorter sentences rather than longer ones – look for inline semicolons, the word “and”, and sentences with more than one concept in them
  • write shorter paragraphs rather than longer ones
  • avoid Latin, always
  • if you wouldn’t say the word out aloud, don’t use it – words like aforementioned, otiose, promulgate, verisimilitude, disambiguate and many others are great for a game of hangman, but poor for legal writers
  • don’t write in a hurry – this is where we revert to our base instinct to write gibberish
  • always re-read your work – not just for typos, but for the overall impact of the letter, including a “legalese check”

I want to stress here that the goal is not to become patronising. The goal is to write clearly, correctly and succinctly. So in the absence of specific information about your client that changes the rules, feel free to use grown up words that an adult with a standard secondary education would understand. For example, on this website I use fairly sophisticated language. That’s because I’m writing for lawyers.

I do not, however, throw in a mutatis mutandis here and there just to show you how clever I am.

Where to from Here?

First – perhaps you’d like to let me know the best/worst example of legalese you’ve ever seen in the comments?

After that, you might like to get into my free legal drafting course and eradicate the legalese from your system.

Happy Lawyering!

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    • Appreciate the question Michelle – at the moment my training programs are on pause, but watch this space as there are more to come.

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