Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Bar Journal Advisory Board’s Plain
English Committee. The assistant editor is George Hathaway. 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—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
One L, that classic account of life during the first year at Harvard
Law School, author Scott Turow describes his first assignment, a four-page
case for his Legal Methods class. Only four pages? They must be going
easy on us, he thought—until he began reading. ‘‘It was,’’ he wrote, ‘‘something
like stirring concrete with my eyelashes.’’
may seem ironic that Turow, a writer and teacher of writing before law
school, felt so frustrated upon confronting what were, after all, mere
words. But that’s the irony of legalese: the more you know about words
and how to arrange them, the more frustrated you are by a ‘‘language’’
that violates nearly every principle of good writing. For the most part,
the substance of the law—the stuff you thought would be difficult—is easy
compared to the words, phrases, clauses, sentences, and paragraphs under
which it is buried.
are that legalese is burying you, too, especially if you’re a first-year
law student. Chances are you are spending precious hours each day digging
out from under it, hours that you’d rather spend struggling with some
challenging legal concept, or pondering the public-policy implications
of some legal doctrine, or playing with your kids or your lover.
Rest assured that you will learn the language of the law after a fashion,
and I hope you learn it quickly. But I also hope you never learn it so
well that it ceases to frustrate and anger you. God forbid that it should
someday sound elegant to you, as it did to the charming southern gentleman
who taught me contracts. (He was an undergraduate English major, speaking
of ironies.) I hope that you stay angry and that you channel your anger
into a willingness to undertake in your professional lives the hard and
thankless—but valuable—labor of translating legalese into standard English.
me address some fundamental questions. First, what exactly is legalese?
If it’s an ‘‘ese’’—a language as I’ve suggested—it must have identifiable,
recurring characteristics that set it apart. Some distinctive features
of legalese include the following:
and archaic vocabulary: Lawyers use outmoded words and phrases (know
ye by these presents) and Latin and French words and phrases (habeas
corpus), and they give unfamiliar meanings to familiar words and phrases
(complaint, consideration, assault). Not surprisingly, unfamiliar
vocabulary is a barrier to comprehension.
and redundancy: Legal writing is full of such doublets and triplets as
will and testament, cease and desist, and remise, release, and
forever discharge that waste time and space.
Abstraction and indirectness: Legal language shares these weaknesses with
scholarly and bureaucratic prose. Legal writers overuse the passive voice,
producing sentences that are longer and less straightforward than they
should be—for example, ‘‘It can be argued that the property was not owned
but was leased by our client,’’ instead of ‘‘We argue that our client
did not own the property, but leased it.’’ Lawyers also transform direct,
vital verbs—the workhorse words of the English language—into long, languid
nominal (noun-based) constructions glued together with helping verbs,
articles, and prepositions. Thus ‘‘Bob determined that’’ becomes ‘‘Bob
made the determination that’’ (or, more likely, ‘‘the determination was
made by Bob that’’). Multiply these transgressions several hundredfold,
and you’ll see how they can sap your prose’s—and your reader’s—vitality.
complexity: This heading describes a multitude of sins that together constitute
the most serious barrier to comprehension in legal writing. Indeed, other
characteristics of legalese are mere annoyances in comparison. Many examples
come to mind, but I’ll point to the complex construction I find most frustrating:
the long sentence made up of a series of subordinate clauses that appear
before the main clause they modify, thus putting the grammatical cart
before the horse and suspending the core meaning of the sentence until
the end. Here’s an example from a set of jury instructions:
will be your duty, when the case is submitted to you, to determine from
the evidence admitted for your consideration, applying thereto the rules
of law contained in the instructions given by the court, whether or
not the defendant is guilty of the offense as charged.
a simplified version, and notice how quickly it gets to the point:
duty is to determine whether the defendant is guilty of the offense
charged. You must do this by applying the law contained in these instructions
to the evidence admitted for your consideration.
sentences: Complex, convoluted constructions go hand in hand with long
sentences. When your high-school English teacher told you that each sentence
should contain a single thought, he or she was giving sound, if simplistic,
advice. You know from mind-numbing experience that 200-word sentences
are endemic in legal writing. All are harder to read than need be.
now you should be getting a fix on the enemy; on the other hand, you may
be wondering whether legalese really is the enemy. I mean, isn’t legalese
a necessary evil? Aren’t legal terms of art a shorthand that actually
makes it easier for lawyers to communicate with each other? Surely, our
good professors wouldn’t make us work these verbal Chinese puzzles if
it weren’t necessary.
may indeed be a necessary evil, depending on what you mean by ‘‘necessary.’’
If you mean that legalese is necessary because your boss will berate you
or your law professor will lower your grade if you refuse to use it, you
may be right. In the same sense, bosses and law professors are necessary
is legalese necessary for purposes other than reinforcing the prejudices,
and quieting the fears, of your ‘‘superiors’’? The answer is yes (rarely)
and no (usually). Yes, terms of art are useful under some circumstances.
Res ipsa loquitur is a time-saving shorthand for the concept it
represents, as is proximate cause. But terms of art are harmful,
not useful, in consumer contracts and other documents designed for public
consumption. The lawyer’s shorthand is the public’s gobbledygook.
important, terms of art, which are sometimes useful, do less to impede
comprehension than the long strings of archaic phrases or tortuous sentences
for which there is no excuse. Tangled sentences are not a shorthand
for anything. They waste time and cause confusion, which in turn causes
needless litigation. Antiquated formalisms are similarly useless. To use
Professor David Mellinkoff’s example, there is no rational justification
for writing ‘‘in consideration of the agreements herein contained, the
parties hereto agree’’ instead of ‘‘we agree.’’
are reasons for these affronts to good English, of course. For example,
archaic formalisms are frozen into legal prose by the inherent conservatism
of the legal process. When a judge upholds the words of a contract, those
words become winners. Cautious lawyers will choose them time and again
over untested words, even though the ‘‘winning’’ words fell from common
usage centuries ago.
legal drafters, you will have to live with these reasons, just as you
must live with bosses and law professors and judges. More than most writers,
lawyers must be sensitive to the needs of their varied readers and must
learn to write for their audience. I’m simply asking that you put up with
as little legalese as you can. If your boss won’t let you draft contracts
in standard English, at least don’t write client letters in legalese.
At least don’t permit yourself to write some 300-word boa constrictor
of a sentence—and if your boss makes you do that, get a new boss.
Finally, when you become the boss, create an environment in which
standard English flourishes. You will be rewarded many times over.
so? you ask. Why, now that you’ve gone through or are going through such
agony to learn legalese, should you join the crusade to revise it into
something that approximates standard English? (Incredibly, legalese does
have its defenders.)
are many reasons for casting arms against bad legal writing, including
the hardship that legalese works on laypeople who must interpret it and
the damage it does to our profession’s already tarnished image. But if
you’re persuaded by no other reason, consider this: legalese will continue
to waste your time and energy even after law school, and your time will
be more valuable then, at least in monetary terms. Translating legalese
may get easier, but ‘‘easier’’ is a comparative adjective—easier than
what? Easier than stirring concrete with your eyelashes, maybe. Maybe.
Stay angry. Stay tuned.
article originally appeared in the Student Lawyer.