llerbatirn

ln Onc L, that classic account of lifeduring the first year at Harvard LawSchool, author Scott Turow describeshis first assignment, a four-page case

for his Legal Methods class. Only fourpages? They must be going easy on us,

he thought unril he began reading' "ltwas," he wrote, "something like stir-ring concrete with my cyelashes."

Ir may seem ironic that Turow, a

writer and reacher of writing before lawschool, felt so frustrated upon con-fronting what were, after all, merewords. But that's thc irony of legalese;

the more you know about words andhow to arrange them, the more frus-rrated you irre by a "language" whichviolates nearly cvcry principle of goodwriting. For thc most part, thc sub-stancc of rhe lirw-the stuff youthought woulcl bc difficult-is casy

compared to rhc words, phrases,clauscs, scntcnccs, and paragraphs un-der which it is buried.

Chirnccs arc rhat lcgalese is buryingyoll, too, cspecially if you're a first-yearsrudcnt. Chanccs irrc you are spendingprccious hor.rrs cach day digging outfrom under it, hours that you'd ratherspend struggling with some challenginglegal conccpt, or ponderirig the publicpolicy implications of some legal prin-ciple, or playing with your kids or yourlovcr.

I enrpirthizc. Rcst assured that youwill lcrrn thc langLrage <lf the law aftera fashion, irnd I hopc you learn itquickly. But I also hopc you ncvcr learnit so wcll thirt it ccascs to frustratc andi.rngcr you. God forbid rhar it shouldsomcday sound clcgant to you, as it didto thc charnting soLlthcrn gcntlcntanwho trrught nrc contracts. (He was an

undergraduirrc English maior, speakingof ironics.) I hopc yoLl stay angry, andrhat you channcl your angcr into a wil-lingncss to undcrtakc in yorrr profes-sional livcs thc hard and thankless-but v:rluablc-labor of translirting le-

Mark Mathcwson is a latuyer in Pana,lllinois, and a contributing cditor toStudcrrt Lrrwycr. He uill rcgularly writcV crhatirn.

10

Law studentsare not only

allowed to wse

foul language,

to use it.

BY MARK MATHE!rSON

galese into standard English.It is that hard, thankless, and valuable

labor to which this column is devoted.In futurc editions I'll write abour peoplewho are drafting clearer statutes, clearerbriefs, clearer contracts, clearer plead-ings, clearer memoranda. I'll try to showyou how they do it and how you can

do it too. I'll cite examples of common ,

sins against good English committed inrhe name of good legal drafting, and of-fer suggestions-mine and those of peo-ple of more expert than l-about howto avoid them. l'll write about how legal

language got rhe way it is, and why it is

so slow to improve.But in this first column, let me ad-

dress some preliminary questions. First,whar exactly is legalese? If it's an "s5s"-a language as I've guggested-it musthave identifiable, recurring characteris-tics that set it apart. Such distinctive fea-

tures of legalese include, but are notlimited to, the following:

. Arcane and archaic vocabulary:Lawyers use outmoded words andphrases ("know ye by these presents")and Latin and French words and phrases

(habeas corpus), and they give unfamil-iar nreanings to familiar words andphrases ("complaint," "consideration,""assault"). Not surprisingly, unfamiliarvocabulary is a barrier to comprehen-sion.

o Ovcrspecificity apd redundancy:Lcgal writing is full of such doublets

they're enQouraged

and triplets as "will and bequeath,""cease and desisr," "remise, release, andforever discharge," which waste timeand space.

o Abstraction and indirectness: Legallanguage shares these weaknesses withscholarly and bureauratic prose. Legalwriters overuse the passive voice, pro-ducing sentences that are longer andless straightforward rhan they shouldbe (e.g., "it can be argued rhar rheproperty was not owned but was leased

by our client," instead of "we arguethat our clienr did not own rhe prop-erty, but leased it").

Lawyers also transform direct, vitalverbs-the workhorse words of theEnglish language-into long, languidnominal (noun-based) constructionsglued together with helping verbs' ar-ticles, and prepositions. Thus "Bob de-termined that" becomes "Bob made thedetermination that" (or, more likely,"the determination was made by Bobthat"). Multiply these transgressionsseveral hundredfold and you'll see howthey can sap your prose's-and yourreader's-vitality.

o Grammatical complexity: Thisheading describes a multitude of sins

which together constiture the most se-

rious barrier to comprehension in legalwriting-indeed, other characteristicsof legalese are mere annoyances incomparison. Many examples come tomind, but I'll point ro the complexconstruction I find most frustrating: thclong sentence made up of a series ofsubordinate clauses that appear beforethe main clause they modify, thus put-ting the grammatical cart before thehorse and suspending the core meaningof the sentence until the end. Here'san example from a set of iury instruc-tions: "lt will be your duty, when thccase is submitted to you, to deternrinefrom the evidence admitted for yor.rr

consideration, applying thereto therules of law containcd in the instruc-rions given by the court, whether ornot the defcndant is guilty of thc of-fense as charged." Here's a simplifiedversion, and norice how quickly it gets

to the point: "Your duty is to detcr-

If s called legalese

Srudent Lrwyer

mine whether the defendant is Suiltyof the offense charged. You must do

this by applying the laws contained inthese instructions to the evidence ad-

mitted for your consideration."Complex, convoluted constructions

go hand in hand with long sentences.

fuh"n yort high school English teacher

told you that each sentence should con-tain a single thought, she or he was giv-ing sound, if simplistic, advice. Youknow from mind-numbing experiencethat two- and three-hundred-word sen-

tences are endemic in legal writing' Allare harder to read than need be.

By now you should be getting a fixon the enemy; on the other hand, Youmay be wondering whether legalese

r.rily is the enemy. I mean, isn't le-

galeie a necessary evil? Aren't legal

ierms of art a shorthand that actuallymakes it easier for lawYers to com-municate with each other? Surely ourgood professors wouldn't make us

ivork these verbal Chinese puzzles if itweren't necessary?

Legalese may indeed be a necessarY

evil, depending upon what You. mean

by "neiessary." If you mean that le-galese is necessary because your- boss

irill be.rte you or your law professorwill lower your grade if you refuse touse it, you may be right. In the same

sense, bosses and law professors are

necessary evils. (Didn't I say this workwas hard and thankless?)

But is legalese necessary for purposes

other than reinforcing the preiudices,and quieting the fears, of your "super-

iors"i The answer is yes (rarely) and no(usually). Yes, terms of art are useful

under some circumstances. Res ipsa lo'quitur is a time-saving shonhand for theioncept it represents, as is "proximatecause.i' But terms of art are harmful,not useful, in consumer contracts and

other documents designed for publicconsumption. The lawyer's shorthand is

the public's gobbledYgook.More importantly, terms of art,

which are sometimes useful, do less toimpede comprehension than the longstrings of archaic phrases or tortuoussentences for which there is no excuse.

October 1987

Tangled sentences are not a shorthandfor anything. They waste time and cause

confusion, which causes needless liti-gation. Antiquated formalisms are sim-ilarly useless. To use law professorDavid Mellinkoffs example, there is norational lustification for writing "inconsideration of the agreements hereincontained, the parties hereto agree" in-stead of "we agree."

There are reasons for these affrontsto good English, of course. For'ex-a-ple, archaic formalisms are frozeninto legal prose by the inherent con-vervatism of the legal Process.

lffhen a

judge upholds the words of a contract,those words become winners. Cautiouslawyers will chose them time and again

over untested words, even though the"winning" words fell from commonusage centuries ago.

As legal drafters, you will have to livewith these reasons, of course, iust as

you must live with bosses and law pro-fessors and iudges. More than mostwriters, lawyers must be sensitive to the

needs of their varied readers, and mustlearn to write to their audience. I'msimply asking that you put uP with as

little legalese as you can. If your boss

won't let you draft contracts in stand-ard English, at least don't write client

letters in legalese. At least don't permityourself to write some 300 word boa

constrictor of a sentence-and if yourboss makes you do tbat,get a new boss.

Finally, when yoz become the boss,

create an environment in which stand-

ard English flourishes. You will be re-

warded many times over.How so, you ask. tWhY, now that

you've gone or are going thror:gh such

agony to learn legalese, should you iointhe crusade to revise it into somethingapproximating standard English?- (ln-ciidibly, legalese does have its defend-ers-l'll address their arguments infuture columns).

There are many reasons for casting

arms against bad legal writing, includ-ing the hardship legalese works on lay-people who must interpret it and thed"mag" it does to our profession's al-

ready- tarnished image. But if you'repersuaded by no other reason, considerthis: Legalese will continue to wasteyour time and energY even after lawichool, and your time will be more val-

uable then, at least in monetary terms'Translating legalese may get easier, but"easier" is a comparative adjective-easier than what? Easier than stirringcement with your eyelashes maYbe.

Maybe. Stay angry. Stay tuned. I

Illustration by Tom Bachtell l1