Do you speak legalese?

AuthorSchwartz, Martin A.

Each profession has its own jargon but most professions rely on modern English as their base. Real estate and other transactional lawyers, those who draft legal documents, seem to be the exception. This is a strange phenomenon since most litigators, those attorneys who write only for fellow lawyers (i.e., judges), seem to have little problem writing in modern English. However, most real estate and other transactional lawyers whose work-product involves nonlawyer parties, usually find it difficult to express their thoughts in modern English. Instead, they rely on a strange language referred to as "legalese" to convey their message.

Merriam-Webster defines "legalese" as follows: "the language used by lawyers that is difficult for most people to understand; legal jargon." (1) The Oxford Guide to Plain English describes it somewhat differently:

Fog in the law and legal writing is often blamed on the complex topics being tackled. Yet when legal texts are closely examined, their complexity seems to arise far less from this than from unusual language, tortuous sentence construction, and disorder in the arrangement of points. So the complexity is largely linguistic and structural smoke created by poor writing practices.

Legalese is one of the few social evils that can be eradicated by careful thought and disciplined use of a pen. It is doubly demeaning: first it demeans its writers, who seem to be either deliberately exploiting its power to dominate or are at best careless of its effects; and second it demeans its readers by making them feel powerless and stupid. (2)

William Safire, a former op-ed columnist with The New York Times, describes it more humorously: "[L]egalese often has the virtue of eliminating ambiguity, and should be read more as a mathematical equation than as prose, anything herein to the contrary notwithstanding." (3)

Legalese is a language that relies on archaic language, poor grammar and sentence structure, repetition, surplus language, and legal jargon. The predicate for use of legalese seems to be that the parties will be represented by attorneys, and their attorneys will understand the documents even if their clients cannot. Although such an assumption may assist in promoting legal employment, it appears no more defensible than having legal documents written in Arabic in reliance on the parties using persons familiar with Arabic to explain the contents of the documents to their clients. Since legal documents will govern the rights and obligations of the parties for whom they are written, it seems only proper that such parties should be able to read and understand them. The use of legalese has been criticized by the courts: "[This is a] document checked full of legalese that can make a Byzantine scholar proud." (4)

Some legalisms seem to be going out of vogue. Does anyone use "the party of the first part" and "the party of the second part" to reference the parties to an agreement? Use of these terms allows the drafter to avoid identifying the parties throughout the document, but to an untrained reader, it may be unclear which party is obligated to which obligations under the agreement.

Other terms seem to have survived the transition from the age of the bow and arrow to that of automatic weapons. Many drafters continue to use terms like "witnesseth" and recitals preceded by the term "whereas." Frequently, last paragraphs in agreements conclude with "In witness whereof." One may well wonder if such drafters think it is essential their documents look like legal proclamations intended to be admissible in the English courts of the 14th century or be in a form sufficient to be affixed to the nearest tree. And what about title affidavits that conclude with the phrase "further affiant sayeth naught"? This last phrase adds nothing to the affidavit that a period...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT