A post from our student blogger Megan
For the last several weeks during class it has been brought to my attention that lawyers speak their own language. At some point, halfway through law school, I became submerged into what a layperson would call “legalese.” Sidepoint: I never knew what a “layperson” (someone who is not a member of a given profession, such as law or medicine) was until law school. Res ipsa loquitur, injunction, arbitration, certiorari, intestate, sanction, estoppel, and venue are just a few of the words that lawyers tend to use without much thought. Patent law is even more specialized. The word “patent” itself is derived from Latin and literally means open, evident or exposed. I am guilty of throwing these words into things I write and, worst of all, things I say on an everyday basis. I have peppered more than one phrase with a “summons and complaint” and added a generous helping of “damages” to other conversations without thinking whether my readers and listeners even know what I’m talking about. But is this necessary? Why don’t lawyers just write and speak simply without using legalese?
We have to consider the origins of law in order to properly answer this question. While we do not know exactly when laws were developed and where, there is evidence of legal doctrines popping up around China in approximately 2500 B.C. during the rule of Baron Yu. Apparently, Yu drew a line on some sort of grid and criminals were deported to one side while everyone else lived on the other. Fast forward to 399 B.C. to when a vote by 501 people sentenced a well-known philosopher to death: the trial of Socrates. And most everyone knows that each continent, country, province and state creates, implements, and punishes under its own laws. The notion of specific language that denotes the use of legal terms is likely as old as law itself. As society continued to develop, new laws were created which in turn became more and more complex, reflecting the advancement of civilization. During the 1600’s it was a known fact that attorneys had to speak French, Latin, and English. Most places have their own words and meanings ascribed to their legal systems—this is likely where much of our legalese stems from.
So is there any problem with throwing a few legalese terms like “shall” and “heretowith” into writing and speaking as a way to honor our long legal heritage? Well, no, unless you are one of the thousands of plain English proponents out there. I recently joined the Plain Language Advocates forum on LinkedIn. There are a lot of interesting posts on this site including one article that talks about how using big words reduces credibility. One person in the group also suggested a “death row” for words that are no longer a part of common usage. There is another side to this argument, though. Contracts and License Agreements are packed with heavy legalese. Any corporate law attorney will tell you that the End User License Agreement on that new program you just installed is set up to protect “somebody.” That “somebody” is the person or company that developed the software. Legal language in this case can be a powerful warning to would-be copiers and people who intend to misuse.
To sum it all up, language is a living, breathing, evolving creature. Legalese, if it still exists, will likely look radically different 100 years from now. So go ahead, throw some bailment or some bylaws into your word soup when you are writing and talking. Just be prepared to flat out explain why you are using them in the first place and get ready to define these terms to your audience