As the legal profession is one that benefits from clear communication, it is surprising how the language used by lawyers can sometimes be confusing. This may in part be because of the liberal use of legal jargon. In this article we will consider some common terminology used by the profession and look at what some lawyers have done to improve how they communicate.
Let us start with a quote from a Professor of Law, Joseph Kimble, about why complicated writing persists in the modern legal profession:
“Legalese persists for a lot of bad reasons – habit, inertia, fear of change, the overwhelming influence of poorly written opinions and forms, false notions of prestige, and any number of myths about plain language...”
Let’s start with words that lawyers still use out of habit. Do you know the difference between “ab initio” (used in contract law to mean from the start) and “ultra vires” (beyond one’s powers)? There is no reason why you should – unless of course you are a Latin speaker – and yet some lawyers habitually use Latin phrases in their writing. If you want to get some idea of how much Latin is still in common use in legal communication, here are seven words and phrases just beginning with the letter A. Pity the client who is trying to work out what is meant by actus reus, ad hoc, ad idem, ad infinitum, adjourned sine die, ad valorem and ante. A lawyer who is trying to communicate clearly should really think about when it is necessary to use these phrases in modern times.
Another common barrier for clear communication between lawyers and clients is when words with the same meaning are used interchangeably. One example of this is referring to a way leave versus an easement. They are both types of rights of way.
What about slightly old-fashioned phraseology, which could include examples such as above-mentioned, aforesaid, and all and sundry? These words are not particularly helpful for a modern reader.
The problem of using complex language is not isolated to the legal profession, but certainly there are many lawyers who are offenders. There is a misconception by some in the legal profession that by using this type of language they might make a greater impact or enhance how they are perceived. But certain words and phrases are likely to put a client off instead of impressing them. Another aspect of legal terminology is that it is tradition to use it; however, times are changing and people much prefer clear language these days.
So, what is happening in the legal profession to improve things? The Plain English Campaign has created an A-to-Z guide to legal phrases, but it has done much more than simply provide a guide. Its website has several resources aimed directly at the legal profession as part of its work championing the use of clear and concise language. There is a recognition by many lawyers of the usefulness of the Campaign’s work and many firms now display the Plain English Campaign logo. Some firms have also used their software application (the Drivel Defence) to inspect their webpages for the use of plain English.
It is well worth considering some of the Campaign’s free guides, including a very helpful guide on how to write in plain English, with tips such as:
• Keeping your sentences short
• Using “you” and “we”
• Using words that are appropriate for the reader
• Learning which words that should be avoided
Being prepared to improve how you communicate and recognising when someone else is using a lot of unnecessary language is a useful skill to develop. Simply relying on spell check is not enough. If you did not formally study English at a higher level, do not let this put you off. It is never too late to improve your skills and the free guides on the Campaign’s website are a great place to start.