Many lawyers are guilty of using excessive legalese in their legal writing. Lawyers still use many words and phrases that have long fallen out of fashion in everyday usage. There are many reasons for this: Some writers think legalese sounds more “lawyerly” or formal. Others simply continue to regurgitate outdated terms learned from law school case books, supervising attorneys, and decades-old forms.
However, legalese can hinder clarity and comprehension in legal writing. Moreover, research by legal writing professors shows that judges strongly prefer documents written in plain English. Judges view writing heavy in legalese as poorly worded, unscholarly, and unpersuasive.
Words from Dead Languages
Many legalese terms are relics from Old English. For example, “whereas” is a near-meaningless preliminary statement that often appears in contracts, settlement agreements, and court orders. According to Bryan Garner, “whereas” clauses typically have no legal effect, but are only preliminary statements that provide introductory background information before the binding language. Because “whereas” has no purpose in contracts or any other legal documents, such phrasing can be safely removed in favor of plain English without impacting the legal meaning of the document.
In many instances, legal writing can be clarified by replacing an outdated word or phrase from Old English with a modern English synonym, while still preserving the writer’s intended meaning. Archaic terms such as “henceforth,” “hereinunder,” and “forthwith” are likely to confuse many readers. Instead, phrases such as “from now on,” “below,” and “immediately” convey the same meaning while greatly improving comprehension.
Lawyers are also often guilty of overusing Latin terms. Why say “supra” when “above” conveys the same meaning more clearly? Even so, there are several Latin terms that remain useful to lawyers and do not easily translate to modern English: for example, phrases such as “certiorari,” “res ipsa loquitur,” and “respondiat superior” sum up complex legal doctrines in a way understood by most legal readers.
Double Trouble
Beginning in the Middle Ages, British legal language began a transition from Latin to French to English. Thus, legal writers long ago began the habit of drafting phrases such as “cease and desist:” a word each from English and French or Latin to explain the same idea. Known as “legal doublets,” these phrases may have once been useful in ensuring that a reader understood the meaning of important terms. Even so, many of these phrases have long outlived their original purpose, and can usually be shortened to one word to reduce redundancy. Some common examples include:
Aid and abet
Cease and desist
Covenant and agree
Due and payable
Free and clear
Have and hold
Heirs and successors
Indemnify and hold harmless
Null and void
Sole and exclusive
Terms and conditions
True and correct
Said Too Often
As stated by legal writing professors Anne Enquist and Laurel Currie Oates, “if you were a stand-up comic trying to make fun of the way lawyers write, all you would have to do is put ‘said’ or ‘such’ before almost every noun.” Indeed, only a lawyer could write the following: “I heard the new restaurant across the street is excellent. Let’s have lunch at said restaurant on Friday!” According to another legal writing professor, some lawyers incorrectly believe that “said” is more precise than more ordinary words. However, there is no difference in precision between the phrases “said conspiracy” and “this conspiracy.” Thus, the word “said” should never be an adjective: instead, use “the,” “that,” “this,” or “those.”
The Final Test
When choosing words for a legal document, the test should be whether the potential use of “legalese” will improve or diminish the communication between the reader and the writer. Ancient words are not necessarily superior.
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