In a recent column, I discussed the importance of trained court interpreters. But some readers have reminded me that when they visit a lawyer, they feel the need for an interpreter just to understand their attorney or the legal documents put before them!
Let's face it, when non-lawyers try to read legal documents (whether it's a rental car agreement or that contract in the impossibly tiny print that your credit card company sends you), they usually wind up more confused than when they started.
And why shouldn't they feel that way? After all, legalese frequently makes little sense and is even contradictory at times. In legalese, when you "execute" a document you bring it into existence; with a convicted criminal, you're doing the exact opposite.
A piece of land or a building is considered "real" property, as if the cars or furniture one owns are somehow unreal. (Actually, the reason land is called "real" property owes its origin to the French word for royal, since all land used to be held by the king).
Congress once passed legislation describing that "September 16, 1940" means "June 27, 1950." A New Zealand law defined "day" as a period of 72 hours, while an Australian agricultural statute defined "citrus fruit" to include eggs.
In the U.S., the legal system considers a 20-year-old document as "ancient," while a 17-year-old person is categorized as an "infant."
In fact, I commonly see the following phrase in legal agreements as lawyers struggle to cover all the bases: "The masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses."
Many linguists already regard the language of the law as more than just a collection of jargon, but as an actual "sublanguage" with its own grammar and syntax. How many normal speakers of the English language would understand the term (common in mortgages) "lawfully seised of the estate to be conveyed?"And how many would grasp the provision in a promissory note that makes you waive your right "to interpose any counterclaim?" It's no wonder that after hearing some attorneys talk, people have asked if they came with subtitles.
I view legalese as an unnecessary barrier between lawyers and the rest of society. Sure, every occupation has its technical jargon -- don't ask me if I understood everything that my mechanic told me recently -- but attorneys are in the business of communication.
In the courtroom, whether it's a complex commercial transaction or an allegation about a defective product, I view my role as that of a communicator who is trying to make issues and evidence understandable for the jury. I also belong to an organization called SCRIBES, an honorary society of judges, law professors and legal authors who work toward eliminating legalese and improving legal writing.
Consider some of the following actual examples of legalese, and how the example's real meaning could be expressed in far simpler terms:
- In a State Farm insurance policy, the company wants to let its policyholder know that it won't reimburse him for damage caused to his home by war. "War" is defined by the insurer to include "any undeclared war, civil war, insurrection, rebellion, revolution, warlike act by a military force or military personnel, destruction or seizure or use for a military purpose, and including any consequence of any of these. Discharge of a nuclear weapon shall be deemed a warlike act even if accidental." O.K., I get it, if my house is nuked, I won't be able to file a claim. Something tells me that will be the least of my worries.
- A Connecticut jury instruction reads "A superseding cause is any force which, by its intervention in the sequence of events from the defendant's negligence to the plaintiff's injury, legally prevents the defendant from being held liable for the injury even though his negligence has been a substantial part in bringing the injury about. To establish that a third person's intervening act was not a superseding cause of an injury, the plaintiff must therefore prove at least one of the following facts: first, that the third person's intervening conduct was not a legal cause of the injury; second, that such conduct was not intentionally harmful; and/or third, that the injury was not outside the scope of the risk created by the defendant's negligence."
Translation: Even if the defendant behaved carelessly, you can't hold him liable if the plaintiff's injury was really caused by the harmful act of another person. With jury instructions like these, no wonder that they called the movie "Twelve Angry Men."
- A publishing contract provides the following: "For services rendered and to be rendered, it is agreed between the Author and the Author's agent that the Author does hereby irrevocably assign and transfer to said agent and agent shall retain for the life of the Work a sum equal to fifteen percent (15percent) as an agency coupled with an interest of the gross monies accruing to the account of the Author per the Agreement and any subsequent agreements for the life of the Work in all its editions, revisions and adaptations, prior to deductions from or charges against such monies for any reason whatsoever."
Translation: We will deduct a 15 percent commission for your agent.
Thankfully, some companies, have adopted a "plain English" standard for the contracts they require, and the movement to lift the fog of legalese from our language is growing. But the impenetrable cloud of "herewiths," "heretofores," "the party of the first part," etc. remains.
If you want to learn more about why archaic terms like "witnesseth" persists, or simply want to laugh at some of the more ridiculous examples of legalese, check out the book "The Party of the First Part: The Curious World of Legalese" by Adam Freedman, a "recovering lawyer" who now writes a column for the New York Law Journal.
Until then, you might find yourself signing contracts without knowing what you really agreed to. If that happens, call me -- I speak "lawyer."