New tricks for old dogs – converting legalese into plain language (Part 2)

Following her story on how she went from legalese to plain language, Caryn Gootkin explores further the need for plain language in the legal world and the challenge this presents to lawyers. The Consumer Protection Act, that requires written legal communications to consumers to be in ‘plain language’, comes into effect on April 1, 2011.

After documenting my journey from lawyer to plain language practitioner, I thought it would be a good idea to delve deeper into the origin of legalese. I decided to explore just why it is worn as a suit of armour by many lawyers. As a starting point, I went back to basics.

Defining the beast

Legalese is defined on oxfordonline.com as the formal and technical language of legal documents. This definition is bland in tone compared to other more colourful descriptions. Dictionary.com gives a more emotive explanation: language containing an excessive amount of legal terminology or legal jargon. The Free Online Dictionary of Computing comes closer to voicing the negative connotations most people associate with the word. Its entry includes the following phrases: Dense, pedantic verbiage…text that seems designed to obfuscate.

The words “excessive” and “designed to obfuscate” gave me the clues to the answers I sought. Legalese is excessive because it is used as a weapon to protect (and guard against, indemnify, hold one harmless, warrant, secure, provide cover) against every possible and likely consequence, and those that are completely unpredictable or remote. Lawyers use language as a necessary patch to plug up holes so that their clients’ ships don’t sink.

But legalese also has another, more insidious aim; it is intended to intimidate and confound both laymen and opposing attorneys in the hope that they will acquiesce to what is being demanded on behalf of a client. It is this bullying on the part of some lawyers that has earned the profession its bad reputation. I am sure you have heard the one about why sharks won’t attack lawyers. (If you haven’t – it is out of professional courtesy.)

Taming the beast

Armed with a greater understanding of the evolution of legalese and the reasons it’s managed to survive this long, I turned to the challenges the plain language decree posed for lawyers proficient in legalese. (You may recall that both the National Credit Act and the Consumer Protection Act now require written legal communications to be in plain language.)

Conventional legal language is anything but plain. I’ve previously described legal writing as formal, punctilious and antiquated. To this I could add threatening, convoluted and highfalutin. I could go on, being trained as a lawyer, but I am sure you get the point.

In short, legal practitioners are often guilty of

• using many words when one would be enough (see above)
• choosing grandiose words over simpler ones (“notwithstanding the fact that” instead of “even though”)
• beginning or joining sentences with archaic conjunctions (wherefore, whereupon)
• writing in the passive rather than the active voice (“an application was brought”)
• using “one” or “the writer” rather than more personal pronouns
• referring to themselves as “we” even when referring to only one person.

(I had to restrain myself from inserting inter alia and “including but not limited to” before writing the above list, so deeply ingrained in lawyers is the need to be completely certain we have not left anything to chance.)

While there has been growing support for the idea of using plain language in the legal profession over the past decade, it’s been regarded by most as a quite radical nice-to-have, rather than the imperative that it has become. The Consumer Protection Act comes into force on April 1, 2011. Let’s prepare for the onslaught.