Legalese List for Lawsuits
By the Plain English Committee
The Plain English Committee has previously reviewed the category of lawsuits. We summarized the documents in the category and gave Clarity Awards for well-written documents.1 The documents that we reviewed are shown in Figure 1.
Analysis of Documents
In addition to giving Clarity Awards, we identified high-profile elements of legalese in specific documents:
Complaints and Answers
Each year lawyers file more than 100,000 new civil lawsuits in Michigan's district and circuit courts. In each of these lawsuits, a plaintiff's complaint and a defendant's answer typically begins with "Now Comes the plaintiff (or defendant) . . . ." and ends with "Wherefore, plaintiff (or defendant) requests that the court . . . ." Yet, many groups, organizations, and associations have asked lawyers to stop using Now Comes and Wherefore. Legal-writing classes in law schools teach lawyers to eliminate formalisms like Now Comes and archaic words like Wherefore. Furthermore, in 1985 the State Bar of Michigan sent each lawyer in Michigan a copy of Irwin Alterman's book Plain and Accurate Style in Lawsuit Papers, which encourages lawyers to eliminate Now Comes and Wherefore. Finally, for more than ten years the Michigan Supreme Court's State Court Administrative Office has produced court forms without formalisms and archaic words. The SCAO complaint and answer forms do not use Now Comes and Wherefore.
Motions and Orders
Each year lawyers file an estimated total of about 500,000 motions in civil cases in Michigan's district and circuit courts. A corresponding number of orders are then written by lawyers or judges and issued by these courts. These orders typically begin "It is hereby ordered . . . ."—even though legal-writing classes, Alterman's book, and SCAO encourage lawyers to eliminate the archaic word hereby.
Most of the briefs written in Michigan are either supporting briefs for motions in district or circuit courts, or appellate briefs for cases in the Court of Appeals or Supreme Court. Although briefs are only one of our 50 examples of legal documents, most law schools have a legal-writing class that concentrates on briefs. Therefore, briefs should not contain the elements that we have defined as legalese (formalisms, archaic words, redundancies, and Latin words) and legalese compounded (long sentences, weak passive verbs with nominalizations, wordy phrases, and long words). District courts, circuit courts, and the Court of Appeals are the most appropriate places to determine the quality of briefs and to develop a legalese list of the worst elements found in briefs in Michigan. In the future we hope to find clerks in those courts to do just that.
Legal secretaries prepare affidavits. Because there is no standard format for affidavits, legal secretaries use dozens of different formats. Some affidavits contain the symbol SS, and some affidavits do not. Some affidavits contain the phrase further deponent saith not, and some do not. Neither the symbol nor the phrase is necessary to make an affidavit legally valid. The symbol and the phrase are two of the worst examples of legalese in Michigan.
In January 1993, we took a short sample survey of the use of Now Comes and Wherefore in complaints, hereby in orders, and SS in affidavits. We found that these words are in heavy use, and we published this survey in our March 1993 column.
As a next step we contacted several groups to support our campaign. We asked the groups:
Do you believe that eliminating Now Comes, Wherefore, hereby, and SS will help to improve legal writing and the public opinion of lawyers?
If you do, would you be willing to ask the members of your organization to eliminate these four words from the complaints, answers, motions, orders, and affidavits that they write?
The Michigan Judges Association replied:
The Michigan Judges Association answers question number 1 in your memo-yes. The MJA approved your effort to eliminate the four words referred to in your memo. The answer to question number 2 is yes and the answer of the membership was yes, they would work toward eliminating the use of these words.
The Michigan Defense Trial Counsel replied:
You may indicate that the MDTC endorses your Committee's effort to eliminate the legalese referred to in your letter.
And a recent January 1995 sample survey of complaints, orders, and affidavits indicates some progress from the January 1993 sample survey. See Figure 2.
Inertia is the reason that lawyers give for continuing to use this stuff. Inertia is the reason that lawyers give for not following the lead of legal-writing classes, the Michigan Supreme Court, the Michigan Judges Association, and the Michigan Defense Trial Counsel. But inertia is simply another way of saying that they don't want to eliminate these words. If we could get lawyers to start here, we might even set them free for all the rest of plain language.
Our legalese list for lawsuits begins with Now Comes and Wherefore from complaints and answers, and continues with hereby from orders. The Michigan Trial Lawyers Association and the Michigan Defense Trial Counsel are the groups that have the most control over eliminating these words. Our list ends with SS and further deponent saith not from affidavits. The Michigan Association of Legal Support Professionals is the group that has the most control over this.
In summary, Now Comes, Wherefore, hereby, SS, and further deponent saith not could be largely eliminated from lawsuit papers in Michigan if these three associations push forward in asking their members to let these words die.
1. Hathaway, Plain English in Lawsuit Papers, 72 Mich B J 340 (March 1993). We have fussed a little with this category. Until recently, we folded it into a category called laws and lawsuits. But we have now decided to treat laws and lawsuits as separate categories.
2. We thank the following people for participating in both the 1993 survey and the 1995 survey: Gloria Lyons, Deputy Court Administrator of the Civil Division of the 36th District Court; Ron Maurer, Chief Deputy Circuit Court Clerk of Wayne County Circuit Court; and Judith Christie, Administrative Manager of the U.S. District Court for the Eastern District of Michigan.
"Plain Language" is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the State Bar's Plain English Committee. The assistant editor is George Hathaway, chair of the Committee. The Committee seeks to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website. George Hathaway is a senior real estate attorney at the Detroit Edison Company and chair of the Plain English Committee of the State Bar of Michigan.