Legal Langauge

Module II

"I know you lawyers can with ease Twist words and meanings as you please; That language, by your skill made pliant, Will bend to favour every client." (John Gay)

  English used by lawyers and Legal English (Legalese) is the style of  English other legal professionals in the course of their work. It has particular relevance when applied to legal writing and the drafting of written material, including: material, including: 

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legal documents: contracts, licences, contracts, licences, etc.  etc. court pleadings: summonses, pleadings: summonses, briefs,  briefs, judgments,  judgments, etc.  etc. laws: Acts laws: Acts of Parliament and subordinate legislation, subordinate legislation, case  case reports legal correspondence

What Exactly is Legalese?

Many experts believe that legalese has its roots in the the Battle of Hastings in 1066, which lead to the Norman conquest of England. After the conquest, Norman French found its way into English courts. English lawyers were unsure as to whether a French word had the same meaning in English, and thus began to include both words in contracts to be on the safe side. This lead to phrases still in use today, such as “right, title, and interest,” where “right” and “title” are English, and “interest” is French, and “breaking and entering,” in which the English word “breaking” is paired with the French word “entering.” This cross -channel linguistic mash up begat ever more convoluted phraseology as it was passed from generation to generation of lawyers. Legalese is the writing style used by attorneys and legal scholars when communicating about legal matters in documents ranging from contracts to scholarly papers. It is an example of technical technical writing, a type of writing used by people in a specific profession to

communicate with other members of the profession. Like other technical writing, legalese can be difficult for laypeople to understand  because it assumes a certain level of knowledge with legal concepts and the legal system. This is criticized by some people in the case of communications that members of the public will have to interact with, like sales contracts. It is surprisingly easy to use a large number of words to say almost nothing. Legalese is the practice of using legal jargon and wordiness to communicate information It is crucial to know what legalese when navigating a legal situation is. The confusion resulting from legalese is not entirely on purpose and technical writings fond in other industries often have the same obscure terminology. There is also a  practical reason for using wordiness. wor diness. Several features can be seen in legalese. The first is the very careful word use. In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren't familiar with the law, as ordinary words can have a different meaning in a legal context. For example, seemingly redundant phrasing actually isn't, when the legal meanings of the  phrase are considered. Legalese also includes a number of professional terms, including Latin terms, although there has been a push in some areas of the legal community to replace Latin with plain language for clarity. Legal documents also rely heavily on sourcing and citation, showing a legal  basis for all of the statements being made. Precedent, the established and accepted component of legal practice, is an important part of law and legal documents that do break precedent must still include substantial supporting arguments for the break with tradition. This form of writing also tends to be highly formal. The formality is in part a result of the meticulous word choices and phrasing used, and in part a convention of the legal the legal profession.  profession.  Other technical writing also tends to formality, as people tend to be taken less seriously when

communicate with other members of the profession. Like other technical writing, legalese can be difficult for laypeople to understand  because it assumes a certain level of knowledge with legal concepts and the legal system. This is criticized by some people in the case of communications that members of the public will have to interact with, like sales contracts. It is surprisingly easy to use a large number of words to say almost nothing. Legalese is the practice of using legal jargon and wordiness to communicate information It is crucial to know what legalese when navigating a legal situation is. The confusion resulting from legalese is not entirely on purpose and technical writings fond in other industries often have the same obscure terminology. There is also a  practical reason for using wordiness. wor diness. Several features can be seen in legalese. The first is the very careful word use. In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren't familiar with the law, as ordinary words can have a different meaning in a legal context. For example, seemingly redundant phrasing actually isn't, when the legal meanings of the  phrase are considered. Legalese also includes a number of professional terms, including Latin terms, although there has been a push in some areas of the legal community to replace Latin with plain language for clarity. Legal documents also rely heavily on sourcing and citation, showing a legal  basis for all of the statements being made. Precedent, the established and accepted component of legal practice, is an important part of law and legal documents that do break precedent must still include substantial supporting arguments for the break with tradition. This form of writing also tends to be highly formal. The formality is in part a result of the meticulous word choices and phrasing used, and in part a convention of the legal the legal profession.  profession.  Other technical writing also tends to formality, as people tend to be taken less seriously when

they write informally or colloquially. Members of the legal profession do occasionally break with tradition; several Supreme Court justices, for example, have written opinions incorporating rhyming couplets and other whimsical inclusions. In some regions, consumer advocacy organizations have argued for the replacement of legalese with plain text in documents read by members of the public. This is in response to concerns about people who sign contracts and other legal documents without fully understanding their meaning. A legalese to plain text translation of a sort is recommended in some settings, allowing lawyers to draft a legally enforceable contract while including a clear explanation understandable to laypeople so they know what they are agreeing to  by signing the contract Legal writing has long been criticized for being almost unintelligible to laypersons and on occasion, to lawyers. In his article, "The End of Legalese: The Game is Over," Robert W. Benson quoted a doctor's, a lawyer's and a judge's reactions to legalese. In reply to an insurance company, the doctor wrote: I am certain that you put a lot of thought into the letter but as far as I am concerned it is not understandable. This was not written for the common man to understand; it was presented in a smoke of confusion and "double talk." I want you to rewrite the letter so that I know simply and plainly what was on your mind. The lawyer wrote: I have in my time read millions of words from the pens of judges and, despite my professional interest in them, I have rarely failed to experience a sense of defeat or even pain. Sometimes it is as though I saw people walking on stilts; sometimes I seem to be trying to see through dense fog; and always there is the feeling of being belabored with words. I have known moments when I felt actual physical shock, as though the words were bats or bricks. The judge wrote:

I read briefs prepared by very prominent law firms. I bang my head against the wall, I dash my face with cold water, I parse, I excerpt, I diagram and still the message does not come through. In addition the structural content is most often mystifying. These quotes are typical of those advocating use of plain language (also referred to as "plain English") in legal writing and the abandonment of "legalese" means words other than "terms of art" which are typical in legal documents but not in ordinary English. Terms of art are those terms whose meaning is fairly well agreed to among lawyers and whose use eliminates a more lengthy phrase written in ordinary English. An example of a term of art is "stare decisis." The criticism of impenetrable legal writing is well founded, especially concerning "functional documents." "Functional documents" are documents such as contracts, jury instructions, and legislation written to be acted upon. Legal documents, especially functional documents, should be written in plain language because a reader cannot act on a document the reader cannot understand. This article will first explore the trend toward plain language. The article will then review plain language rules and compare the rules with linguistic studies of two types of function documents--jury instructions and appellate briefs--and the revisions necessary to rewrite them in plain language. THE PLAIN LANGUAGE TREND--LEGISLATION

Some believe that plain English should be mandated. Others urge legal writers to voluntarily use plain language. They claim lawyers should use plain language and eliminate legalese simply because it makes sense that writing be readable and understandable, not because of legislative mandate. State and Federal Legislation requires that certain types of legal documents be written in plain language. For example, state statutes of Connecticut, Hawaii, Maine, Minnesota, Montana, New jersey, New York, Oregon, Pennsylvania, and West Virginia require that certain

types of consumer contracts to be written in plain language. Thus far, the Florida Legislature has not mandated plain language for consumer contracts, but does require "readable language" in insurance policies and "clear and unambiguous language" on voting ballots. In their  book, Writing Contracts in Plain English, Carl Felsenfeld and Alan Siegal review the history of the plain language trend, beginning with the start of the consumer movement earlier in this century and continuaing through the enactment of plain language legislation by a number of states and the federal government. Plain language legislation generally uses one of two standards--an "objective" or a "subjective" standard. the famous Flesch test or other tests based on sentence length have been the basis of the objective standard. The theory behind this standard is that a sentence containing fewer words or syllables is more readable and understandable. The standard has been rightly criticized. Just because a sentence contains fewer words or syllables does not mean that it is more readable or understandable than a longer sentence. The "subjective" standard requires clear communication, not just a maximum number of words per sentence or paragraph. A Canadian  barrister and solicitor, David C. Elliot, has proposed "A model PlainLanguage Act" using a subjective standard. The act would require legal documents to "be written as understandably as the subject matter allows" and "be designed in a way that helps readers understand the document." The act creates penalties for noncompliance by: Imposing fines for archaic language. Creating a statutory claim for non-compliance. Empowering courts to prohibit publication, use, or sale of a document, to order an offender to rewrite or redesign a document, and require an offender to take writing courses or participate in community service. Authorizing nonprofit corporations to bring actions for a declaration of noncompliance. Such actions would publicly embarrass those who have not been persuaded to improve their documents.

Plain language legislation has forced some to rewrite their consumer contracts in plain English--but at what cost? How can legislative mandate be balanced against free speech, intellectual creativity? Education and peer pressure may accomplish as much as legislation in the long run. THE PLAIN LANGUAGE TREND--PEER PRESSURE

Two well respected legal writing organizations, The Legal Writing Institute and and Scribes--The American Society of Writers on legal subjects, have advocated an improvement in legal writing. The Legal writing Institute, with over 900 members worldwide, adopted the following plain language resolution at its 1992 conference: 1. The way lawyers write has been a source of complaint about lawyers for more than four centuries. 2. The language used by lawyers should agree with the common speech, unless there are reasons for a difference. 3. Legalese is unnecessary and no more precise than plain language. 4. Plain language is an important part of good legal writing. 5. Plain language means language that is clear and readily understandable to the intended readers. 6. To encourage the use of plain language, The Legal Writing Institute should try to identify members who would be willing to work with their bar associations to establish plain language committees like those in Michigan and Texas.. The American Society of Writers on legal Subjects, whose members include "lawyers, judges, academicians, writing instructors, and a wide range of others interested in the improvement of legal writing,"  publishes The Scribes Journal of Legal Writing. The inscription on the back cover of the journal states: The scribes Journal of Legal Writing seeks to promote better writing within the legal community. Because the field is so broad, the

Journal's contents are purposely eclectic. We hope to appeal to all with an interest in improving legal writing, whether in the courthouse, the law office, the publishing house, or the law school. The writing in the Journal should exemplify the qualities we advocate: lucidity, concision, and felicitous expression. Meanwhile, we hope to spread the growing concern for whatever is turgid, obscure, and needlessly dull. On the lighter side, there are contests both for excellence in legal writing and for the most atrocious legalese. For example: "The Language of the Law" column of the Florida bar News has run several excellence in legal writing contests. The goal of the contests is "to shake loose the shackles of legalese." Award winning passages are  printed in the Florida Bar News. The Plain Language Committee of the State Bar of Texas solicits nominations for its annual "Legaldegook Awards." The passages winning the 1991 and 1992 Legaldegook Awards were reprinted in the 1992 issue of The Scribes Journal of Legal Writing. Not surprisingly, the 1991 awards went to: 1. a provision from the Code of Federal regulations; 2. a passage from an unidentified law review article; 3. a typographical error in an appellant brief (using "copulation" instead of "compilation"); 4. a response of an unidentified politician; 5. a provision from the Employment retirement Security Act of 1974; 6. a passage from a brief to the Supreme Court of Texas; 7. a passage from an Illinois Appellate Court case (Parens Patriae cannot be ad fundandam jurisdictionem. The zoning question is res inter alios acta.); and 8. a provision of the Internal revenue Code.

In 1992, the second year of the Legaldegook Awards, the committee established a plain English Hall of Fame and inducted six lawyers: Charles Beardsley, Jeremy Bentham, Thomas Jefferson, Abraham Lincoln, Fred Rodell, and Timothy Walker. John A Bell, a former legislative attorney, founded The League for Literate Laws, a "mythical militant organization" campaigning "to improve the way our federal statutes are written." The campaign "is linked to the efforts in and out of law schools to train lawyers to write  plain language prose." The league publishes the Dispatch, a newsletter "working for better laws though better English." The lead article of the January 1995 issue profiled Jeremy Bentham, the great nineteenth century utilitarian, who urged that "legislation be written in such a way that discourages dissembling and concealment, requires elected legislators to bear honestly their responsibilities for legislating, and makes the words of law more intelligible to ordinary people." IN SEARCH OF PLAIN LANGUAGE

Legalese is like Justice Potter Stewart's definition of pornography. You know legalese when you see it, but it is difficult to define. What any person considers to be plain language may be legalese to another. How do you know when you are using plain language? You are probably on your way to using plain language if you follow the rules. Many legal writing books, including Plain English for Lawyers by Richard C. Wydick and Legal Writing: Sense and  Nonsense by David Mellinkoff, contain rules for using plain English. The rules are designed to guide the legal writer to produce readable and understandable documents. A natural question is whether Wydick's and Mellinkoff's plain language rules do increase the readability and understandability of legal documents. A few studies have been done to test the readability and understandability of legal documents. A comparison of Wydick's and Mellinkoff's plain language rules and studies of jury instructions and appellate briefs is instructive. Although some of the plain language rules overlap with findings from the studies, adherence to some of the plain language rules was not necessary for increased

comprehensibility of jury instructions or appellate briefs. Let's first look at the two sets of rules and then at the results of the studies. IN SEARCH OF PLAIN LANGUAGE--PLAIN LANGUAGE RULES

Wydick's and Mellinkoff's plain language rules are similar in several ways. They clearly state the "do's" and "don'ts" of plain language and use humor to enliven what otherwise could be a very dry subject. While the two sets of rules include several that are similar, the focus of the two sets of rules is different. Wydick's focus is at the sentence level, while Mellinkoff's focus in on the legal document as a whole. In his book, Plain English for Lawyers, Richard C. Wydick suggests: 1, Omit surplus words; 2, Use base verbs, not nominalizations; 3, Prefer the active voice; 4, Use short sentences; 5, Arrange your words with care; 6, use familiar concrete words; 7, Avoid language quirks; and 8, Punctuate carefully. In legal writing: Sense and Nonsense David Mellinkoff states his seven rules: Rule 1: The Language of the Law Is More Peculiar Than Precise. Don't Confuse Peculiarity With Precision. Precision is sometimes peculiarly expressed, but don't be taken in by the peculiar expression of nonsense.

Rule 2: Don't Ignore Even the Limited Possibilities of precision. The Price of Sloppy Writing is Misunderstanding and Creative Misinterpretation. Some Day someone will read what you have written, trying to find something wrong with it. This is the special burden of legal writing, and the special incentive to be as precise as you can. Rule 3: Follow the Rules of English Composition. If it's bad writing by the standards of ordinary English, it is bad legal writing. If it's good writing by the standards of ordinary English, it is more likely to be good legal writing. Rule 4: Usually You Have Choice of how to Say It. Choose Clarity. Lack of clarity is a common but not necessary feature of legal writing. It is not an inevitable by-product of precision. Clarity depends more on how you say it than on what you have to say. As you write, keep asking, "Clear to Whom?" Rule 5: Write Law Simply. Do not Puff, Mangle or Hide. The only thing about legal writing that is both unique and necessary is law. To simplify legal writing, first get the law right. You can't simplify by omitting what the law requires or including what the law forbids. The better you know the law the easier to decide what law ought to go in, and what is overkill or window dressing. Rule 6: Before you Write, Plan. in the quiet time before you become excited with your own words-on paper, plan. Talk over goals with those who know more law. Mull,  jot, fret, read, outline. Then write. If you start from a plan, the writing will help your thinking and writing. Unplanned, the flow of words  becomes a distraction. Rule 7: Cut it in Half!

Repeat the operation until you run out of time or material. Don't say the same thing twice inadvertently. Rewrite. Rewrite. Rewrite. IN SEARCH OF PLAIN LANGUAGE--JURY INSTRUCTIONS

Three linguistic studies testing the readability and understandability of legal documents have been completed. One study concerns standard jury instructions, the second concerns appellate briefs, and the third concerns jury instructions, a surgery consent form, a portion of a federal statute, a newspaper article, and text from a sixth-grade textbook. Robert and Veda Charrow conducted "the first empirical, objective linguistic study of the comprehensibility of...standard jury instructions" in which they analyzed how rewriting increased juror understanding. In their article, "Making Legal Language Understandable: A Psycholinguistic Study of Juror Instructions," they describe their study of selected California jury instructions. James F. Stratman used "concurrent reader protocols" to identify problems in appellate briefs. In "Teaching Lawyers to Revise for the Real World: A Role for Reader Protocols" Stratman describes how he had appellate judges "think aloud" while reading appellate briefs. The  judges' comments suggested revisions to make the briefs more readable and understandable. Robert W. Benson cloze tested 90 law students and 100 nonlawyers on their understanding of jury instructions, a surgery consent form, a portion of a federal statute, a newspaper article, and text from a sixth-grade textbook. In "The End of Legalese: the Game is Over", Benson compares the results of law students and nonlawyers. Researchers do not agree that any one type of comprehension test more fairly measures reader comprehension than another type of test. Benson identified standard types of comprehension tests as "multiple choice or short answer test, oral questioning, and the 'cloze  procedure.'" He chose the cloze procedure because it "is not only relatively inexpensive and easy to apply, but avoids key defects inherent in other methods because it tests only the materials and not the questions of the examiner's bias." In contrast, the Charrows and Stratman used the more traditional test of asking readers to paraphrase or comment on the content of the material.

In their study of standard jury instructions, the Charrows started with three Hypotheses: 1, that standard jury instructions--when viewed as discourse--are not well understood by the average juror; 2, that certain linguistic constructions are largely responsible for this hypothesized incomprehensibility; and that if the problematic constructions are appropriately altered, comprehension should dramatically improve, notwithstanding the "legal complexity" of any given instruction. To test these hypotheses, the Charrows asked two different groups of  jurors to paraphrase California standard jury instructions. The answers of the first group of jurors was analyzed and "revealed the existence of numerous grammatical constructions, phrases, and words that appear both to typify legal language and to affect juror's comprehension adversely." The instructions were rewritten in plain language and the second group of jurors paraphrased the rewritten instructions. Comparing the results of the two groups, the Charrows "isolated specific linguistic features of jury instructions--and of legalese in general--that interfere with the layperson's understanding of legal language." In most instances, the passages identified by the Charrows as causing comprehension problems were also the subject of plain language rules. The Charrows found that "certain grammatical constructions and discourse structures...rather than the legal complexity of the jury instructions--were responsible for comprehension problems. These constructions and structures included nominalizations, use of vague  prepositional phrase "as to," misplaced phrases, lexical items (replaced with simpler synonyms in the rewritten instructions), multiple negatives, passive voice in subordinate clauses, poor organization, and use of numerous subordinate clauses within one sentence. Either Wydick or Mellinkoff or both advise the legal writer to avoid all of these constructions and structures.

The two most notable differences concerned wordiness and passive voice. A rule for both Wydick and Mellinkoff was cut excess words. Interestingly enough, the Charrows found that "sentence length has virtually no effect on subject's performance." Wydick suggests using active rather than passive voice. Wydick encouraged the writer to  prefer active over passive voice. In contrast, the Charrows found that  passive voice "created serious comprehension problems only when located in a subordinate clause." The Charrows study did bolster the trend toward plain language. The study showed that jury instructions and other legal documents intended for the law-person should be written in plain language to eliminate the difficulties discovered in the study. "The inability of  jurors to comprehend the [judge's] charge adequately has obvious implications concerning the soundness of the jury system: If many  jurors do not properly understand the laws that they are required to use in reaching their verdicts, it is possible that many verdicts are reached either without regard to the law or by using improper law." IN SEARCH OF PLAIN LANGUAGE--APPELLATE BRIEFS

In his study, Stratman had appellate judges think out loud while reading appellate briefs for a real-life case. Stratman calls this "concurrent reader protocols." using concurrent reader protocols, the study isolated three significant problems with the briefs: "missing information," "miscues," and "too much information at once" and an overall problem of organization. Stratman found that missing information about the procedural history of the case slowed down the reader. In the study, "miscues" included contradictions, ambiguity, failure to make a crucial point, and "ill-constructed" arguments. These miscues caused judges to draw "erroneous inferences." As Stratman  points out, even though the judges eventually understand the argument being made, "these errors reduce the credibility of the  judge's belief in the credibility of the appellant's argument." Giving too much information at once was the third problem. Stratman found that giving too much information at once, some of which information may not be relevant, makes reading much more difficult. An overall  problem identified through use of reader protocols was organization.

When information was presented in an order other than that in which the reader needed to use it, the reader was forced to spend time mentally reorganizing it. The results of Stratman's study also bolster the use of plain language. Although Stratman used slightly different words to describe the comprehension problems encountered by the appellate judges, the  judges would not have faced these problems had the writers of the appellate briefs followed Wydick's and Mellinkoff's plain language rules. Wydick emphasized that words should be arranged with care. Mellinkoff urged the writer to plan before writing and make writing  precise and clear. IN SEARCH OF PLAIN LANGUAGE--LEGAL DOCUMENTS, A NEWSPAPER, AND A TEXTBOOK

Benson cloze tested 90 law students and 100 nonlawyers to determine how well they understood: 1, A plain English jury instruction; 2, Two standard California jury instructions; 3, A "widely used" surgery consent form; 4, A provision of the federal Ethic in Government Act of 1978; 5, A Los Angeles Times article; and 6, Ecology text "from a sixth grade reading textbook used in the Los Angeles City schools." The 90 law students scored the "rough equivalent" of B+ to A+ while the 100 nonlawyers scored the "rough equivalent" of D to A+ and 10 nonlawyers with only a high school education scored the equivalent of F to A. All three groups scored A or A+ on the plain language jury instruction. The law students also scored A+ on the standard jury instructions while the nonlawyers scored a C. The law school students scored a B+ on the surgery consent form while the nonlawyers scored a C and the high school students scored a D. The law school students

scored an A on the statute while the nonlawyers scored a D and the high school graduates scored an F. The law school students scored an A on the newspaper article while the nonlawyers scored a C and the high school graduates scored a D. The Law school students scored an A on the school text while the nonlawyers scored a B+ and the high school graduates scored a C. The results of the cloze test are disturbing for nonlayers considering that "the median number of years of education for the Nation's  population as a whole is 12.5." Especially disturbing are the low grades on the standard jury instructions and the surgery consent form.  Neither jurors nor individuals being prepared for surgery are accompanied by lawyers, yet misinterpretation of a jury instruction or the consent form can have serious and even life threatening consequences. Florida jury instructions are fairly well written in comparison to the California jury instructions studies by the Charrows and Benson and  jury instructions challenged in a 1994 U.S. Supreme Court case. Victor v. Nebraska,______U.S._______, 127 L. Ed. 2d 583 (1994), involved the challenge to the definition of "reasonable doubt" in  Nebraska and California jury instructions. The language of the challenged California jury instruction was taken from an 1850 case written by chief justice Shaw of the Massachusetts Supreme Court: Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The court reluctantly held that the challenged instructions did not violate the Due process Clause. Concerning the California instruction, Justice O'Connor wrote "we do not condone the use of the phrase [moral certainty] but we have no supervisory power over the state courts...." In his concurrence, justice Kennedy stated:

It was commendable for Chief Justice Shaw to pen an instruction that survived more than a century, but, as the Court makes clear, what once made sense to jurors has long since become archaic. In Fact, some of the phrases here in question confuse far more than they clarify. Justice Ginsburg, concurring, suggests that Nebraska and California use the definition of reasonable doubt proposed by the Federal Judicial Center: Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If,  based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. The Florida Standard Jury instructions in Criminal Cases contains the following definition of reasonable doubt: A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all of the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable. Although differently worded, the Florida definition is the same in substance as that preferred by justice Ginsburg and it would probably do well if tested by the Charrows or by Benson. Wydick and Mellinkoff would suggest that the definition be revised to delete excess words. The adjective string "speculative, imaginary or forced," the gerund string "considering, comparing and weighing," and the verb pair, "wavers and vacillates," contain a number of words of

similar meaning. If there is not a good reason for including them, the excess words should be eliminated. Each string and the pair should be replaced with one of the existing words, or perhaps a new one

The history and the Rise of Plain English: Although legalese is a language unto itself, it was still widely used in contracts until the mid 1970’s. Plain English gained momentum in U.S in the 1970’s, its  profile raised through the “double speak awards” of the national council for the teachers of English. Then, in 1975, attorneys for Citibank created the first “reader -friendly” consumer loan agreement  by eliminating legalese and replacing it with shorter, more precise language, while at the same time adding numbered paragraphs and other aids to understanding. President Carter took up cause and in 1978 ordered that all the government documents should be written in  plain English In the same year law Reform commission of Canada  began reviewed all federal laws and recommending Plain English improvements. In Britain , the Plain English campaign took off in 1979, with the much publicized shredding of unreadable official forms in the houses of Parliament. By 1982, the British government had officially embraced it, obliging bureaucracies to review and revise their documentation, with changes to over 21 000 form. The Australian government endorsed Plain English in Legislation in1984, the fact that the Plain English is enshrined in legislation helps to explain the initial capial letter, as well as its quasi proper name status . Some paraphrase it as plain language.

Apart from the challenging bureaucratese the Plain English movement has put the spotlight on impenetrable legal prose. In legislation as -------------------------------------------------------according to the law reform research commission of Victoria (Australia) published in 1987 Yet the warning that the legal  provision may be altered by Plain English revision still needs sto be heeded. Collaborative work between the lawyers and the Plain English writers is the obvious answer. In the ensuing decades, contract law professors began to adopt the “Plain English” concept and taught it to their students. By the time the 90’s rolled around,

Plain English was even adopted as a requirement for certain consumer agreements in some states. Despite the name, Plain English is only partly about language. It also emphasizes the importance of document design. Any document needs clear layout, in sections and paragraphs that expresses the structure of the information and with the effective heading and subheadings to identify local content. Adequate white space between the sections and in lists also makes the information more accessible. Where language comes in, it is broadly a matter of seeking simple everyday word whenever possible and speaking more directly to the reader. Sentence need be shorter and less intricate with punctuation that ensures reliable reading. An average of 20 words recommended, though individual sentences will of course vary around that. The most important principle of Plain English is to keep the reader in mind as you write. Think of yourself as communicating to someone across the table and how each sentences sounds. Your writer’s “ear” should react whenever sentences leave the reader grasping the breath. The benefit of using plain English is abundantly clear. When contracts are written in pure legalese, the parties that actually need to  perform them may not understand their obligations. This results in an ambiguity in which one party to a contract interprets a confusing term differently then the other party, which in turn results in contractual disputes and litigation. So why do many lawyers still continue to incorporate legalese in contracts, despite the rise of plain English? There are basically three reasons why this practice continues: There is a movement for plain language in legal writing that is very important. Its goal is to eliminate unnecessarily complex language in law, government and business. The improvement of writing clarity should be supported. However, it cannot be expected that a lay person will be able to read and converse freely about the technical aspects of any profession. A physics paper submitted for publication to an academic journal is not reading accessible to the lay reader.

In the law, some writing should be directed at the reader's lay level. A good example is warning labels. It is imperative that a warning label affixed to a dangerous machine be clear and easily understood. What is not so clear is that legal documents intended to govern complex relationships and transactions need be or can be written with same reader in mind. For attorneys the use of traditional legal writing is more efficient because it is most commonly used; therefore, most commonly understood. Some accuse lawyers of being obscure writers on purpose. Perhaps some lawyers are like that, but many accusations against lawyers for writing "legalese" are unfounded. If you read a surgeon's textbook giving precise instructions on how to  perform a cholecystectomy and you did not understand it, would you think it was a bad textbook? Or would you think that you had a bad surgeon? No, of course not. Similarly, if your lawyer drafts a will or trust for you and you do not understand all of the provisions, does that mean it's a bad document, or that your lawyer is being an obscurantist? No, of course not. "Boilerplate" provisions in a contract, will or other legal documents are sections of routine, standard language. The term comes from an old method of printing. In the late 1800s and early 1900s, "boilerplate" or ready to print material was supplied to newspapers. Advertisements or syndicated columns were supplied to newspapers in ready-to-use form as heavy iron, prefabricated printing plates that were not (and, indeed, could not) be modified before printing. These never-changed plates came to  be known in the late 19th century as "boilerplates" from their resemblance to the plates used to construct boilers. The term "boilerplate" later was adopted by lawyers to describe those  parts of a legal document that are considered "standard language," although any good lawyer will tell you to always read the "boilerplate" in any document you plan to sign. Today, "boilerplate"

is commonly stored in computer memory to be retrieved and copied when needed. In a will or trust, sections of boilerplate are often maligned as "legalese." In fact, the choice of boilerplate is crucial. Let me give you a few examples. Wills should contain a tax clause. A tax clause is a provision that says where the executor should get the money to pay federal and state death taxes. A common boilerplate provision could provide that all taxes are to be paid from the residue of the probate estate. Maybe your will says that. Boilerplate is often used in a will or trust to provide definitions. For example, the will may refer to children, grandchildren, descendants or issue. Who is included? Is a stepchild included in the class? Is an adopted child included in the class? Are children born of unmarried  parents included? If there is a definition in the boilerplate, it may exclude stepchildren as beneficiaries. Is this intended? Perhaps, then again, perhaps not. This is a case where the definition in the  boilerplate goes to the heart of the matter - who is a beneficiary and who gets a share of the estate. If you name an individual or a bank or trust company as a trustee, can the beneficiaries ever remove that trustee? Thirty years later when the trustee's fees are high, investment performance is poor, and there is inadequate customer service, can the trust be moved? It depends on what it says in the boilerplate. All boilerplate is not equal. The choice of the boilerplate that is appropriate to the circumstances and is in accordance with the intentions of the parties is very important. There is no standard, across-the-board language for anything. It is all written by someone, the words have meaning, and they are binding. Language Element of Plain English what to avoid: “wordy phrases . Many formulaic phrases in official phrase can be paraphrased more simply “in the event of” often amounts to just plain if, and “in respect of” to about . High density phrases such as “new employees health

and welfare committee” are ambiguous and hard to decode and can  be accessed more easily if unpacked as the “ committee on the health and welfare of new employees” Note that Plain English doesn’t necessarily mean restricting teh number of words especially when expressing something complex “ passive construction that make for roundabout expression. “The motion was supported by all members of the committee voted unanimously for the motion. The motion was supported by all the members of the committee” communicates more directly and succinctly as “ the committee voted unanimously for the motion” Passive construction may still be useful from time to time in maintaining topical progression at the start of sentences. Plain English movement is sometimes criticized as attempting to provide a “one size fits all” answer the communication  problems. Its most committed practitioners never suggest that and take care to say that Plain English intervention will vary with the context. Technical jargon is alright for specialist readers, but not to the general public. The average paragraph length will probably be longer in a discussion document than, say, in business letters. Imperative verbs can be effective in household or technical instruction, but in advisory documents they sound rather too curt. The use of the second person may make advice clearer, but too much direct address can suggest heavy handed control. Plain English revisions often affect the tenor of the text and so revisers must always consider whether this is intended. Is the revision meant to be friendlier than the original, or to keep the same distance from the reader? The benefits of Plain English

In the end Plain English can do more than clarify communicationthough that itself is substantial benefit. It also reduces reading errors, as well as complaints and law suits relating to official documents. Apart from saving time and energy and money on all those fronts, it helps citizens to better understanding of government procedures and  policies and of their own rights. Tradition: The legal profession has a long and colourful history. Legalese is as much a tradition as the wigs and robes still

used in English courts, and, like English lawyers, American attorneys are reluctant to abandon their treasured traditions. Laziness:  When drafting contracts, many lawyers simply copy the language of earlier contracts. This practice has been undertaken by attorneys from the year 1066 to the present day, which means that some elements of legalese are simply passed on. Self-importance: It’s important for an attorney to appear more educated and intelligent than the clients who hire them. Many continue to include legalese to impress their clients and justify high  bills. The Importance of Legal Precision

One of the biggest concerns within the legal profession is precision. Using imprecise language can lead to misinterpretations. For example, if a lawyer drafts a contract and then the contract is ever in question, a judge may interpret the contract in a manner that is different than what the lawyer originally intended. By using highly detailed verbiage, the lawyer can avoid ambiguity and can also avoid saying things that could later be used against the client. Using Common Terminology

A lack of precision can lead to miscommunication. For example, in a lawsuit, the individual filing the lawsuit is referred to as the plaintiff and the individual being sued is referred to as the defendant. As a result, it is very easy to identify the correct individual during the courtroom discourse. Two additional common terms are a misdemeanour and a felon. If someone were to say “I have unpaid  parking tickets,” this would not raise many eyebrows. However, if an individual were to say “I committed armed robbery, this would be considered much more shocking. In legal terminology, a minor crime is considered a misdemeanour, while a serious crime is called a felon. By calling a crime by its proper name, it is easier to communicate the gravity of the crime. The Downsides of Legalese

However, legalese can also work to the disadvantage of a third party. In many cases, an individual may agree to sign a contract that contains details that the individual would normally not agree to. However, the terms are obscured by the legalese. For this reason, it is always a good idea to have important contracts read by a lawyer to clarify the meaning of the legalese. A successful legal practice depends on three critical skills: sales, good writing and effective speaking (arguing). Because most of a lawyer's  job involves communication, it's no surprise that skilled legal writing can make the difference between winning and losing a case. While speaking can bring the point home to a judge and jury and sales bring in the clients, it's the legal filings and summary of research that ultimately wins a case.

Four Tools for Effective Legal Writing A successful legal practice depends on three critical skills: sales, good writing and effective speaking (arguing). Because most of a lawyer's  job involves communication, it's no surprise that skilled legal writing can make the difference between winning and losing a case. While speaking can bring the point home to a judge and jury and sales bring in the clients, it's the legal filings and summary of research that ultimately wins a case

Good Research Capability The basis of legal writing involves research. Lawyers and their staff must understand as much of the applicable statutory law, case law and facts of a case as possible within a certain amount of time. This information must then be condensed in such a manner that the lawyer can manipulate it to point flaws in the opposing party's argument and strengths in his own argument. Insufficient research will ultimately become apparent if a lawyer can't quote the law or facts effectively when writing. An opposing lawyer can then jump on

this weakness in court to make her own argument appear the better one to a judge and jury.

Copies of Local Rules Many court jurisdictions involve what are called local rules of procedure. While the law is the same from court to court, different courts have nuances or criteria on how they want to see motions and pleadings come across their desks. The lawyer who ignores this will quickly find his writing ignored, delayed or even rejected by a court for not following the specified rules. Every court has their local rules available for use, so a smart lawyer always keeps a copy available for every jurisdiction he works in.

Structure A legal pleading or motion should always have a structure. A basic method taught in law school involves Issue-Rule-ApplicationConclusion or IRAC. This approach explains the issue at hand for the reader, spells out the rule of law involved, how the rule applies or should be interpreted then closes the document showing the reader how to decide the case or motion. Rambling documents are quickly rejected by judges who don't have the time to be interpreting what they might mean.

Editing Editing provides a chance to catch both minor and significant errors in legal writing, especially when the first submission of a document is the only chance to make a legal argument. Attorneys and their staff are well served by always re-reading their documents and having a second person do so as well to catch problems. This can help avoid  problems with a legal citation mistake, misspellings, logic errors, grammatical problems or even erroneous omissions of detail. The written word is one of the most important tools of the legal  profession. Words are used to advocate, inform, persuade and instruct. Although mastering legal writing skills takes time and practice,

superior writing skills are essential to success. Polish your legal writing skills through the simple tips below. 1. Remember Your Audience

Every word you write should be tailored to the needs of the reader. Documents that embody the same research and message may vary greatly in content and tone based on the document’s intended audience. For example, a brief submitted to the court must advocate and persuade. A memorandum to a client must analyze the issues, report the state of the law and recommend an appropriate course of action. Always keep your audience in mind when crafting any piece of writing. 2. Organize Your Writing

Organization is the key to successful legal writing. Create a roadmap for your writing by using visual clues to guide the reader. Introduce your subject in an introductory paragraph, use transitional phrases (“moreover, “furthermore,” “however,” “in addition,” etc.) between each paragraph, introduce each paragraph with a topic sentence and use headings and subheadings to break up blocks of text. Limit each  paragraph to one topic and sum up your message with a concluding sentence or paragraph. Organizational structure guides the reader through your text and promotes readability. 3. Ditch The Legalese

Legalese - specialized legal phrases and jargon - can make your writing abstract, stilted and archaic. Examples of legalese include words such as aforementioned, herewith, heretofore and wherein. Ditch unnecessary legalese and other jargon in favor of the clear and simple. To avoid legalese and promote clarity, try reading your sentence to a colleague or substituting abstract words with simple, concrete terms. For example, instead of “I am in receipt of your correspondence,” “I received your letter” is c learer and more succinct. 4. Be Concise

Every word you write should contribute to your message. Omit extraneous words, shorten complex sentences, eliminate redundancies and keep it simple. Consider the following sentence: “Due to the fact that the defen dant has not attempted to pay back the money owed to our client in the amount of $3,000 it has become absolutely essential that we take appropriate legal action in order to obtain payment of the aforesaid amount.” A more concise version reads: “Since the defendant has not paid the $3,000 owed our client, we will file a lawsuit seeking reimbursement.” The latter sentence conveys the same information in 18 words versus 44. Omitting unnecessary words helps clarify the meaning of the sentence and adds impact. 5. Use Action Words

Action words make your legal prose more powerful, dynamic and vivid. Add punch to your writing with verbs that bring your prose to life. Here are a few examples: Weak: The defendant was not truthful. Better: The defendant lied. Weak: The witness quickly came into the courtroom. Better: The witness bolted into the courtroom. Weak: The judge was very angry. Better: The judge was enraged. 6. Avoid Passive Voice

Passive voice disguises responsibility for an act by eliminating the subject of the verb. Active voice, on the other hand, tells the reader who is doing the acting and clarifies your message. For example, instead of “the filing deadline was missed,” say “plaintiff’s counsel missed the filing deadline.” Instead of “a crime was committed,” say “the defendant committed the crime.” 7. Edit Ruthlessly

Edit your writing ruthlessly, omitting unnecessary rewriting for clarity. Careful proofreading is particularly legal writing. Spelling, punctuation or grammatical document submitted to the court, opposing counsel or undermine your credibility as a legal professional.

words and important in errors in a a client can

How to write legal brief effectively

A legal brief is a document used to submit an argument to a court. Briefs are generally written by lawyers and are intended to persuade the court to rule in your favor on a particular issue. Here are a few tips to help you write an effective legal brief. Prepare a caption. Court rules state that every pleading should contain a caption including the name of the court, the title of the action, the ile number and names of the parties Begin with a preliminary statement. This should identify the party submitting the brief and inform the court of the relief requested. Generally, a preliminary statement should be kept short and provide the court with enough information to understand the issues to be addressed in the brief. State the facts relevant to the brief. Facts should not be misrepresented, but can be presented in a way that is favorable to your argument. Be sure to cite to the record to support these facts. Make your argument. This is the part of the brief where you present your case. Analyze why the law supports the relief you are requesting. Apply the law to your set of facts and cite to cases that support your  position. Generally, you should make your strongest arguments first, followed by secondary relevant arguments.

Acknowledge the counter-argument. It won't help your case to ignore any valid arguments that can be made by the other side. Address these arguments and explain to the court why your case is different. Distinguish any relevant cases that do not support your argument on their facts. Conclude your brief. Tell the court what relief you are seeking and ask for that relief Legal writing is different than other types of writing. Legal writing is very concise, very dry and leaves little room for creative flair. Legal writing can take many forms including legal briefs, memoranda, scholarly articles, pleadings and motions. Regardless of what type of legal document you are creating, the same rules apply and the same tools prove useful. All legal documents must conform to the Bluebook system of citation, must be expertly stylized and formatted, must be completely free of grammatical and spelling errors and must adhere to the local rules of the courthouse within which it will be filed

Bluebook System of Citation As with any high-quality writing, all legal documents must be cited to include source material for any statement in the document that is not the original thought of the author. Many times, a legal brief will refer to past case law and precedent within the jurisdiction, either state or federal. These cases must be cited precisely and accurately in accordance with the Bluebook. The Bluebook is a wire-bound book that details nearly every type of citation and exactly how to type it. Whether you are citing a case, a statute, the US constitution, a magazine, a newspaper or the Bible, the Bluebook has a chapter to help guide you through the process.

The Redbook Style Manual The Redbook is a cousin of the Bluebook and it provides readers with guidance as to legal style. While legal writing is not meant to be flowery and verbose, it must possess some sort of style. The Redbook  provides guidelines as to how to format footnotes, complicated grammatical conundrums, editing, spelling and capitalization. These

are all concepts a well-written lawyer must be accustomed to and comfortable with. Proper style is just as important as proper citations and the court of law will be critiquing the style of the filed legal document with the utmost of precision. Punctuation Rules Punctuation is a very important aspect of writing; good writing presupposes correct punctuation. Incorrect punctuation is the sign of weak writing, or carelessness. But this sort of thing is eminently avoidable, because punctuation is quite simple to master. Here are some basic rules to keep in mind: 1. Every sentence must end with a full stop. 2. Proper nouns (names of people, places, brands, etc, i.e. unique instances of a class) must always be capitalised. 3. When you use opening quotation marks, do not forget to use closing quotation marks at the end of the quoted word or phrase. 4. Quotation marks are when quoting or sometimes to convey irony, not for emphasis; emphasis is conveyed by emboldening or italicisation, followed by an exclamation mark. 5. Do not use an apostrophe when you are pluralising a word. The plural of toy is toys, not toy’s. Apostrophes are used to form contractions (it is = it’s) and indicate possession. 6. The ellipsis, used to indicate variously the intentional omission of a section of text, an unfinished thought, and a trailing off into silence, consists of only 3 dots. It is pointless to add more dots to an ellipsis. This is excessive punctuation, which is in other words incorrect punctuation. 7. As per the rules of British English, any punctuation mark that is not part of a quoted section of text must be placed outside the quotation marks. However, in the case of direct speech, punctuation marks must be enclosed within the quotation marks. 8. Do not link independent clauses with commas. Independent clauses are groupings of words that can stand alone as sentences. For example, in He knew how to drive, that he didn’t do it very often was a matter more nerves, not inability both the parts before and after the comma are full sentences. In such cases, the comma is not the correct punctuation mark of connection. In needs to be replaced with a semi- colon (‘;’). The sentence becomes: He knew how to drive; that he didn’t do it very often was matter of nerves, not inability. 9. Use a comma after the introductory element of a sentence. The introductory element is a word or a phrase that begins a sentence by  providing background, or simply modifies it. For example, Honestly I don’t know how I managed to escape is wrong, because the word