Lawtalkers Must Learn English, not Legalese

[grumbler]

I suggest you reread what you wrote, more closely, and then look at Habbaku's comment again.

Right, so I fucked up my second statement.  The first made it more clear, alas it wasn't in the quote train.  My apologies.  Thanks for the clarification, you truly are a life saver.

This is Languish.  Surely you don't expect people to actually understand typos and move on, do you?  That's not the Languish Way(TM).  The Languish Way is to pretend not to understand it (either in a humorous way, or a trolling way), and then take the entire topic off track.

FWIW, I think Habs was kidding.  I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.

[Sheilbh]

Legalese should simplify a text for lawyers, even if it distances it from the every day reader.  I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms.  It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.

[ulmont]

Legalese should simplify a text for lawyers, even if it distances it from the every day reader.  I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms.  It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.

IMO it's some of both.  Sometimes, it's easier and better to use a term of art rather than a cumbersome circumlocution.  In other cases, it's superfluous.

From the judge's original list:

The superfluous words - "hereby," "herein," and "heretofore entered in this case" don't do much work and could be easily omitted or rephrased.

For capitalization of "court," "motion," "movant," "debtor"...

"Court" usually indicates "this court where the proceeding is ongoing," and so can be helpful, if you are also referring to what other "courts" have done in other cases.

The "Motion" doesn't add a lot, but it doesn't really hurt any comprehension.  Capitalizing "Debtor" similarly help as per "Court," especially if you're going to use Debtor as a proper name later on.

And really, what's the harm in saying "Debtor owes" rather than "the debtor owes"?  I mean, "the debtor" gets old just as fast and takes up more space...

And using "its" versus "it's" correctly is just better English rather than a legalese - plain English distinction.

In conclusion, while there are some legitimate gripes regarding legalese, most of what this judge is complaining about is just stylistic nitpicking.

[Habbaku]

FWIW, I think Habs was kidding.  I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.

Indeed.  I found it amusing that someone would proclaim that the only prerequisite to be a Polish lawyer was "being able to read," then monumentally fuck up their syntax in a relatively basic sentence.

[Sophie Scholl]

FWIW, I think Habs was kidding.  I don't think I've ever seen ulmont try to be humorous, though, so i think he was seriously trying to chap your ass.

Indeed.  I found it amusing that someone would proclaim that the only prerequisite to be a Polish lawyer was "being able to read," then monumentally fuck up their syntax in a relatively basic sentence.

Hence why I'm not a Polish Lawyer.

[Syt]

I have to check a couple dozens of contracts vs. invoices every month. All the "Whereas ...", "Whereas ...", "Now therefore ..." and all those other meaningless terms that begin most sections make me want to claw my eyes out.

[Rasputin]

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).

Most anglo business people dont like the state's statutory default provisions, and most contract negotiations between sophisticated parties involve trying to allocate risk differently than some legistor saw fit to do it.

[Rasputin]

...

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).

I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.

[Malthus]

Legalese should simplify a text for lawyers, even if it distances it from the every day reader.  I feel that's fine - in a similar way I expect doctors to use medical terminology that would mean nothing to the rest of us, or someone writing for musicians to use musical terms.  It's elitist but should enhance understanding, if some of it's included just to pad stuff out then I think the judge probably has a point.

I have no problem with the use of technical language for technical topics; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.

I do take issue with this particular judges' complaints though. For example, capitalization of certain terms often *adds* meaning - it is a common technique to define a term once and then use capitalization afterwards. Obviously if the capitalization is random it is no good, because that is positively confusing.

[Malthus]

...

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).

I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.

I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.

It is to resolve problems like this that the Indoor Management Rule was developed. 

[Rasputin]

...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.

The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:

Judgment 1 (the plain english model).

Smith owes Jones $1,000.

Judgment 2 (the antiquated legalese model)

Smith shall have and recover $1,000 from Jones, for which sum let execution issue.

Judgment 3 (the antiquated model with extra special magic word)

Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.

In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.


Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).

Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.

[Rasputin]

...

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).

I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.

I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.

It is to resolve problems like this that the Indoor Management Rule was developed.

No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.

[Malthus]

...
; the problem with "legalese" is that much of it is simply meaningless verbiage, or the relic of legal theories from days gone past that has limited or no application these days, or copied from some precedent willy-nilly.

The danger is that some legalese remain magic words that have developed special meaning. For instance consider three judgments:

Judgment 1 (the plain english model).

Smith owes Jones $1,000.

Judgment 2 (the antiquated legalese model)

Smith shall have and recover $1,000 from Jones, for which sum let execution issue.

Judgment 3 (the antiquated model with extra special magic word)

Smith shall have and recover $1,000 from Jones, for which sum let execution issue, forthwith.

In this case, Judgment 1 is completely unenforceable under florida law as it is lacking the magic words that the executive branch needs to see before it will seize property in satisfaction of a judgment.


Judgment 2 is however fully enforceable but only after the expiration of the time (10 days) for the judgment debtor to move for rehearing and if such motion is filed only after the judge disposes of the motion (several weeks or months).

Judgment 3 is immediately enforceable without regard to any motion for rehearing as the executive branch understands the word "forthwith" to mean no delay for rehearing needed.

In this case, "forthwith" isn't meaningless verbiage, but meaningful technical language that indicates when the judgment is due.

The "plain english" statement is not in fact the same statement rendered into plain english, since it is lacking in the same information.

A better example would be "My judgment is that Smith owes Jones $1000, which he must pay now".

I have no idea of course whether under Florida law you need to use the verbal formula "have and recover ... let execution issue ... forthwith". If so, quite naturally it must be included.

[Malthus]

...

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).

I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.

I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.

It is to resolve problems like this that the Indoor Management Rule was developed.

No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.

It's not much of a benefit. They would generally have that remedy anyway, if in fact they had been defrauded ... and if it is untrue (that is, a real corporate officer did not get the required internal approvals) the indoor management rule would generally operate to the other parties' benefit: they could enforce the contract against the company.

[Rasputin]

...

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).

I've never seen that but I have seen perfectly reasonable representations that the signatory had actual authority to sign and that the corporation had provided whatever approvals were necessary for the officer to act.

I've seen this sort of thing too, it is quite common - though its effect is a bit dubious - signing a representation that I have authority to act, have all internal approvals and can bind the corporation is not really different from signing the contract itself, since if I don't the fact that I said I did ought to make no difference either way.

It is to resolve problems like this that the Indoor Management Rule was developed.

No there is a difference; the signing of the representation allows the other party certain remedies in the event of breach to include a fraud suit against the corporate officer if its untrue.

It's not much of a benefit. They would generally have that remedy anyway, if in fact they had been defrauded ... and if it is untrue (that is, a real corporate officer did not get the required internal approvals) the indoor management rule would generally operate to the other parties' benefit: they could enforce the contract against the company.

they might be able to enforce the contract as a result of apparent authority, but they might not--it's often better to have such an express warranty on material transactions although possibly not necessary

my point is that the difference between unnecessary legalese and prudence, or even use of terms of art that might seem antiquated, is often not so clear

going back to my judgment example, are there synonyms to forthwith that are plainer (e.g, now, immediately, without delay), yes-- would the executive branch treat them the same way as the magic word forthwith? doubt it.