Lawtalkers Must Learn English, not Legalese

[DontSayBanana]

My business law professor just emailed me this article, and I wondered if any of the other people here involved with the law had heard about this yet.

Article Link

Judge Orders Lawyers to Stop Using Capitalization 'With Abandon'
Posted Dec 14, 2009 9:31 AM CST
By Debra Cassens Weiss

A federal bankruptcy judge is fed up with lawyers who use superfluous words and too much capitalization, and he has directed them to stop it.

U.S. Bankruptcy Judge Robert Kressel of Minnesota took a stand against legalese in new guidelines (PDF) for lawyers preparing proposed orders in his court, Legal Blog Watch reports, citing a story by Lawyerist.

Kressel says lawyers should eliminate superfluous words such as "hereby," "herein" and "heretofore entered in this case." The phrases "serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish," he writes. "Compare the meaning of 'Now, therefore, it may be and is hereby ordered that' with 'It is ordered.' "

Kressel also observes that "lawyers love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized."

Kressel also says lawyers need to keep their plurals and possessives "straight and consistent," need to watch verb tense, and need to use the possessive "its" and the contraction "it's" correctly.

Don't use "and/or," he counsels. But do use articles such as "the," "a," and "an" as appropriate. Refer to "the debtor," rather than "debtor," for example.

"Write the way you would speak," he says.

Personally, it's not a big deal to me; my writing does tend to sound kind of stiff and formal, but I tend to speak in a fairly stiff and formal fashion.  I do try to stop shy of using obscure prepositions and temporal adjectives, and I don't randomly capitalize (unless I'm citing, and then I figure accuracy is critical, so I'll repeat it with misspellings and all).

Any of you guys guilty of this?

[crazy canuck]

The plain language movement has been around for at least 15-20 years.  Nothing new.

[Josquius]

Good.
Its not like they're in school and have a word limit to reach, there's no need.

[Malthus]

Purging legal drafting of unnecessary 'legalize" is totally commonplace. Google "plain drafting".

Generally, capitalization indicates (or should indicate) defined terms in documents such as contracts.

[DontSayBanana]

I'm familiar with plain drafting, but that's usually talking about contracts.  In fact, I've been using plain drafting all along for contracts.  This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).

[Zanza]

That's not limited to law by the way. I am working with technical documentation and everybody who has ever read a manual knows that most of them are barely comprehensible. It takes a lot of thought to actually get it right.

[crazy canuck]

I'm familiar with plain drafting, but that's usually talking about contracts.  In fact, I've been using plain drafting all along for contracts.  This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).

Same concept.  Not sure why you think people distinguished between contractual drafting and other forms of legal writing.

[Malthus]

I'm familiar with plain drafting, but that's usually talking about contracts.  In fact, I've been using plain drafting all along for contracts.  This, however, is also talking about pleadings and motions, and I hadn't yet heard of a move by the bench to penalize it in all courtroom documents (which makes me think that it might be struck down as outside of the judge's purview for invalidating otherwise legal documents).

Same concept.  Not sure why you think people distinguished between contractual drafting and other forms of legal writing.

What he said. 

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

[grumbler]

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism.  Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).

[crazy canuck]

I think the fact that lawyers want to rely on time-tested templates for their legal work ...

In my experience that is ironically when lawyers get into the most trouble. 

[Josephus]

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

Say what? 

[Martinus]

The funny (or annoying, depending on the perspective) thing about the Anglosaxon style of drafting is that it is unfortunately often expected by Anglosaxon clients, even in jurisdictions where it makes little sense.

For example, in most civil law jurisdictions, you have statutes defining most legal concepts pretty well and you really very rarely want to depart from the statutory definition of some term. So, for example, just stating "force majeure" in a Polish law agreement would be enough - you don't really need to define the term; yet Anglosaxon clients/lawyers want you to put all the verbal diarrhea stuff they usually put in their agreements.

Same goes for all kind of boilerplates etc. (My personal favourite is a representation of a party to the agreement that the agreement is binding on that party - which is the legal equivalent of the Liar's Paradox and perfectly circular in its logic).

[Martinus]

In general, the aim of any legal drafting is clarity as opposed to obsurity and precision as opposed to ambiguity. Drafting for pleadings and the like adds the requirement that the drafting be persuasive.

Chucking in legalese tends to contradict all of these points.

Agreed, but I think the fact that lawyers want to rely on time-tested templates for their legal work (because just getting a comma wrong can cost millions) and what they end up using is stuff written when legalese was the mark of professionalism.  Plus, defensive lawyering always make you add, rather than subtract, verbage (so that force majeure includes tidal waves in the mountains, or whatever). I can totally see why legalistic writing persists even though pretty much everyone sees it as a problem, not a solution (though, since ambiguity begets lawsuits, I am not completely convinced that some of those lawyers' tears are not crocodile ones).

You've seen nothing until you have seen assumptions/disclaimers in a banking opinion. Essentially, you get several pages which tell you the opinion is pretty useless.

[Martinus]

That's not limited to law by the way. I am working with technical documentation and everybody who has ever read a manual knows that most of them are barely comprehensible. It takes a lot of thought to actually get it right.

And don't even get me started on marketing texts.

[Sophie Scholl]

Qualifications for being a lawyer in Poland:  Being able to read.  Suddenly, things make a lot more sense.