Banishing Archaic Language
| Publication year | 2010 |
| Pages | 61 |
| Citation | Vol. 39 No. 11 Pg. 61 |
2010, November, Pg. 61. Banishing Archaic Language
November 2010
Vol. 39, No. 11 [Page 61]
About the Author
Charles C. Tucker is a founding member of Korb Tucker PLLC in Fort Collins, where he represents clients in business, employment, real property, and estate planning matters. He earned his law degree from William Mitchell College of Law in St. Paul, Minnesota, and his doctorate in music from Yale University-ctucker@korbtuckerattorneys.com.
Every word counts in legal writing. Terms of art; terms supported by pertinent legal authority in the jurisdiction; and other terms required by statute, order, or court rule are all important to the practice of law. Using them properly in legal writing can improve precision and reduce verbiage. Outmoded and superfluous words and phrases, on the other hand, detract and distract. Legal writers can learn to recognize archaisms, replace them with more precise words, and thus avoid having their documents become "encrusted by the barnacles of jargon."(fn1)
Retiring Archaic Words and Phrases
The language of the law is a wonderful stew of words from Latin, Old French, Old English, and Middle English. Terms such as plaintiff, defendant, estoppel, laches, fee simple, and voir dire express specific concepts and, though they are centuries old, continue to be essential terms of art. However, the useful ones probably total fewer than 100 (aside from statutorily defined terms). According to Bryan Garner, editor of Black's Law Dictionary,(fn2) at least 100 other words in common legal usage are archaic and serve little or no substantive purpose. Some of these troublesome terms are patently useless, while others, including most of the "here-, there-, and where- words," are imprecise and confusing, and should be avoided.(fn3)
Distinguishing the Useful from the Useless
David Mellinkoff, author of the scholarly and critical The Language of the Law, also scorns the useless words lawyers continue to employ.(fn4) As a remedy, he offers a series of questions writers can ask to distinguish useful words and phrases from imprecise or empty formulas. Among Mellinkoff's criteria are:
Is it a term of art? Are there other words that can serve as well? Will even slight variation change its legal effect? What are the consequences of a departure from rote?
Did the term ever have a definite meaning? Does it have a definite meaning now? Is its meaning more exact than in ordinary English?
Does precedent support this usage? Is it dictum? Is the precedent decisive or persuasive in this jurisdiction? Would this precedent be followed today?
By considering questions like these, legal writers can identify and eliminate useless words from their documentsIs there some requirement that it be said this way? What sort of requirement is it-constitution, statute, rule of court, administrative regulation or order? Has it ever been interpreted? Has it ever been tested? Recently? Would it be enforced today?(fn5)
Replacing Cumbersome Compound Words
Mellinkoff directs a good deal of his biting wit at the adverbial compounds made from here-, there-, and where-. Dozens of them arose in Old...
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