Chapter 3

• Jurisdiction: United States

Chapter 3 Admonitions, Verbosity, and Other Mumbo Jumbo

Words. Whether spoken or written, words are the key to persuasion. But legalese isn't persuasive. Legalese has been described as "arcane language virtually foreign to most citizens."¹ Dictionaries define it as "characterized by archaic usage, prolixity, redundancy, and extreme thoroughness." When do law students and young lawyers start speaking in tongues? Is it when they read the appellate opinions that form the basis of most law school courses? Is it when they first start practicing law and think that professional credibility depends on the ability to inject their language with words not used in everyday conversation?

Persuasion requires professional credibility. Does the use of legalese enhance or detract from written persuasion? That question was answered by judges and court research attorneys in a study where they were asked to rate the quality and credibility of a paragraph laced with legalese and another version in plain English. The result? The paragraph with legalese was less persuasive because the writers were judged not to be credible.² Another study by a Princeton psychology professor concluded that readers of unnecessarily complicated text had negative evaluations of the authors. One of the best things about the article that discussed the study was its title: "Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems With Using Long Words Needlessly."³

Unfortunately, this misguided effort to be credible became ingrained custom, and the unquestioned use of legalese has been passed down from one generation of lawyers to another whose briefs and legal documents are festooned with it. As a California appellate court once commented when trying to decipher an insurance contract, some legal terms had "soporific effect" or they "ring of an obscure Martian dialect."⁴ According to a dictionary, "soporific" means tending to induce drowsiness or sleep, and I'm not sure which Martian dialects wouldn't be obscure. Funny? Absolutely. But the practice of law isn't funny; it involves the serious work of representation, writing, and advocacy. But we should be able to laugh at ourselves for misusing the only tools we have: words. The following is from my personal experience with suggestions on how to avoid the rote use of legalese so that the next generation of lawyers can avoid the infection of officious and obfuscatory language. (Look it up.)

"I'm now going to give you some admonitions," the lawyer announces. The witness looks startled, thinking, "He's going to give me what? What the hell is an 'admonition'?" As the witness ponders this, he is asked, "Have you been deposed...