For most people, legalese, or the legal and technical language used in writing laws, wills, insurance policies, and other legal documents, can be intimidating. Some joke or even seriously believe that lawyers use it to sound smarter or justify higher fees. For decades, the use of plain English has been advocated. In 1972, President Nixon ordered the use of “layman’s terms” in the Federal Register. In 2010, President Obama signed the Plain Writing Act, which purpose was “to promote clear communication that the public can understand and use.” But what really is the importance of legalese in the legal practice?
First, let’s take a look at its history. The use of legalese dates back to the time of Anglo-Saxons. When the Anglo-Saxon laws became increasingly complex, they found it necessary to use an equally complex legal language to reflect complicated status of society. Some of the legal terms that survived and are still used today are writ, ordeal, deem, oath, and witness. Eventually, Latin terms entered the legal language, with the Anglo-French remaining to be an official language. Throughout this period, Latin continued to be used as a legal language, together with English and French. Around 1600, lawyers had to be fluent in French, English, and Latin, as each language was used in specific domains. Traces of Law French can still be seen to date, such as the addition of the initial e to words like squire, creating esquire. The wordiness of legal documents, on the other hand, is partly a legacy of the ancient custom in which clerks were paid by the page.
Today, among the goals of lawyers in using legalese is to appear more objective and authoritative. Aside from this, the use legalese can aid a lawyer in winning cases and can determine the outcome of complex legal disputes. For example, in preparing legal documents for clients, lawyers must make sure that the terms used are not open to other interpretations. They must protect their clients by guarding the documents against future efforts to misconstrue or re-define certain words or phrases. With the use of legalese, a term used can only mean one thing, and therefore may not be misinterpreted and be used against one’s case. Using Latin phrases, for example, can simplify matters as judges know exactly what they mean. Furthermore, judges frequently look at past similar cases in deciding current ones. They read rulings from old cases and use them as guides; therefore, using legalese can also provide predictability and consistency.
There is indeed much debate on the current relevance of legalese. It is undeniable that the complexity of legalese dampens the public’s ability to understand contracts, agreements, and other legal documents. State and Federal legislation require that certain types of legal documents must be written in plain language. There are state statutes that require certain types of consumer contracts to be written in plain English. On the other hand, there are still legal professionals who see the benefits of legalese. At the end of the day, it is how one uses the language that matters. Whether it is plain language or legalese, the welfare of the client must be of utmost consideration in creating legal documents.
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