The Evolution of Legal Language
| Publication year | 2011 |
| Pages | 91 |
2011, January, Pg. 91. The Evolution of Legal Language
January 2011
Vol. 40, No. 1 [Page 91]
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.
Legal language evolves with changing needs and circumstances. Courts, legislatures, and administrative agencies contribute to that evolution by requiring legal professionals to use new terms and set aside outmoded ones. To be sure, "statutes commonly retain archaic phrases and terms because they have acquired an accepted legal meaning,"(fn1) and the appearance of an archaic term does not necessarily render a statute unconstitutionally vague. New statutes often create new terms of art, such as "qualified individual with a disability"(fn2) or "designated beneficiary."(fn3) To ensure readability and accuracy in legal writing, the writer must meld the general principles of prose writing with the specific language requiredby the law.
The Role of the Courts
Courts constantly define and redefine important legal words and phrases.by means of their rule-making powers, courts can direct the manner in which legal language is used. For example, civil pleadings must contain "a short and plain statement of the claim" that is "simple, concise, and direct."(fn4)by interpreting the words contained in statutes, contracts, and other writings that come before them, courts accept specific words and phrases as legally useful and reject others as archaic or obsolete.
The Arkansas Supreme Court made a linguistic choice of this kind in a case in 1980 involving a defective civil summons.(fn5) The summons served on the defendant, a nonlawyer, was a standard legal form containing language that had been "usedby the trial courts for over a century." The summons notified the sheriff "to warn [the defendant] that upon his failure to answer said complaint that same will be taken for confessed." The Supreme Court held in part that, because the summons used the terms "answer" and "taken for confessed," the summons failed to direct the defendant specifically to file a pleading to defend himself and to advise him that, if he did not do so, a default judgment against him could ensue. Moreover, the summons was served about nine months after the Arkansas courts had adopted a new civil rule governing service of process.(fn6) The purpose of the new rule, the Court said, was "to bring the archaic language of the summons ... into modern[,] more readily understandable terms."(fn7) The Court found that the language of the new rule-"judgmentby default will be entered against [the summoned party] for the relief demanded in the complaint"-was "more reasonably calculated to be understood" than the old "taken for confessed"...
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