How To Improve Your Legal Writing By Eliminating Archaic Phrasing
Many lawyers are guilty of using excessive legalese in their legal writing. Words and phrases that have long fallen out of fashion in everyday usage nonetheless remain common in the law. There are many reasons for this: some writers think legalese sounds more “lawyerly” or formal, while others simply continue to regurgitate outdated terms learned from law school case books, supervising attorneys, and decades-old forms.
However, legalese can be a significant barrier to clarity and comprehension in legal writing. Moreover, research by legal writing professors shows that judges strongly prefer documents written in plain English, and perceive writing heavy in legalese as poorly worded, unscholarly, and unpersuasive. The following categories of legalese words and phrases should be avoided to improve the clarity and persuasiveness of a legal document.
Words from Dead Languages
Many legalese terms are relics from Old English vocabularies that survive today almost exclusively in legal documents. For example, “whereas” is a near-meaningless preliminary statement that frequently appears in contracts, settlement agreements, and court orders. According to Bryan Garner, “whereas” clauses typically have no legal effect, but rather 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.
For another example, the Third District Court of Appeal in Ball v. Genesis Outsourcing Solutions, 174 So. 3d 498 (Fla. 3d DCA 2015) recently discussed the phrase “go hence without day,” frequently found in final judgments: “Before permanent county courthouses were built and staffed, the judge, clerk, and lawyers traveled a circuit together in a cavalcade of horses and mules carrying court records and portable legal libraries from county seat to county seat.” Thus, summonses would require defendants to appear from day to day until their case was heard. If the defendant won, the judgment discharged the defendant from the summons with the traditional phrase “go hence without day,” derived from the Latin legal maxim “quod eat sine day.” While an interesting historical footnote, the justification for the phrase has disappeared in modern legal practice. Indeed, The Ball court explained that this archaic phrase is no longer necessary. Rather, the judgment should simply state that final judgment is entered for one party against the other party.
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; however, phrases such as “from now on,” “below,” and “immediately” convey the same meaning while greatly improving comprehension.
Lawyers are also frequently guilty of overusing Latin terms. Why say “supra” when “above” conveys the same meaning in a much clearer manner? That being said, there are numerous 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, 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 that explains 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. However, 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 Many Times
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 in 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 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.
Scott J. Edwards is an appellate and litigation support attorney in Boca Raton. He is a member of the South Palm Beach County Bar Association Young Lawyers Section Board of Directors. Scott’s appellate law blog is at www.florida-appellate-lawyer.com
This article was originally published in the Fall 2016 issue of The Advocate, published by the South Palm Beach County Bar Association.