Plain Language and Legalize, and making sense of legal documents.

The acclaimed motion picture actor, Will Rogers humored, “the minute you read something you don’t understand, you can be almost sure it was drawn up by a lawyer.” Lawyers possess almost a mythical propensity to write in an incredibly complex, confusing manner. This style of writing is called legalese.

Legalese employees archaic terms, poor grammar, confusing sentence structure, and needless repetition. The trend began back when English Tudor lawyers, drafting legal documents in the 1600s, were paid by the word, rather than hourly or for the transaction. To increase their fee, Tutor lawyers, implemented increasingly convoluted and obtuse language. Several words were often used in the place where only one would suffice, and writing legal writing became increasingly redundant and complicated.

This trend carried forward persisting well into the 19th, and 20th century. In 1817, Thomas Jefferson noted: “we lawyers say everything two or three times so that nobody but we of the craft can untwist the diction, and find out what it means…”

The following is an example, taken from Garner’s “Legal Writing in Plain English (2001)”, showing the complexity and confusion of such language:

The Undersigned hereby extends said lien on said property until said indebtedness and Loan Agreement/Note as so modified and extended has been fully paid, and agrees such modification shall in no manner affect or impair said Loan Agreement/Note or the lien securing same and that said lien shall not in any manner be waived, the purpose of this instrument bring simply to extend or modify the time or manner of payment of said Loan Agreement/Note and indebtedness and to carry forward the lien securing same, which is hereby acknowledged by the Undersigned to be valid and subsisting.

Practicing lawyers where not the only ones employing legalese. In the 19th, and 20th centuries, judges encouraged the trend by writing increasingly technical and complexly worded opinions. In their role, some judges fashioned themselves storytellers and relished in their ability to craft elaborate, twisting, opinions in the fashion of narratives of the day. Others wrote complex opinions filled with technicalities and legal jargon to increase the likelihood of being affirmed upon appeal. As the complexity of the writing rose, not only did it take legal training to draft and submit court documents, legal training was also needed to decipher the judges’ rulings for the parties before them.

Criticism of legalese only began in the 1970s. Martineau’s “R J Drafting Legislation and Rules in Plain English (1991)”, states legalese itself is:

flabby, prolix, obscure, opaque, ungrammatical, dull, boring, redundant, disorganized, gray, dense, unimaginative, impersonal, foggy, infirm, indistinct, stilted, arcane, confused, heavy-handed, jargon and cliché ridden, ponderous, weaseling, overblown, pseudo-intellectual, hyperbolic, misleading, uncivil, labored, bloodless, vacuous, choked, archaic, orotund and fuzzy.

Despite these known criticisms’ legalese, remains a big problem in the legal world. The legal profession often is opposed to innovation, and notoriously slow to change resulting in many lawyers employing the legalese for their work. Legalese remains such a problem that recently, in Minnesota, lawmakers changed the law relating to childcare licensure to specifically ensure that orders denying licenses be written in plain language with any necessary corrective steps on behalf of the applicant provided before reapplication.

It can be said with near empirical certainty, that no reader ever gathered a pile of legal notices, contracts, and opinions to sit comfortably in an armchair for a relaxing read on some inspired night. No one reads a legal document because they want to, they do so because they have to. The audience of legal documents are already agitated before they start reading and therefore the goal of any good legal writing should be not only to inform and persuade but also ease the readers journey by painlessly guiding them complex and technical material.

Looking again at the above example from Garner’s “Legal Writing in Plain English”, stating:

The Undersigned hereby extends said lien on said property until said indebtedness and Loan Agreement/Note as so modified and extended has been fully paid, and agrees such modification shall in no manner affect or impair said Loan Agreement/Note or the lien securing same and that said lien shall not in any manner be waived, the purpose of this instrument bring simply to extend or modify the time or manner of payment of said Loan Agreement/Note and indebtedness and to carry forward the lien securing same, which is hereby acknowledged by the Undersigned to be valid and subsisting.

Garner shows how the sentence can be rewritten by adding the party and simply and clearly by employing plain language to state: Williams extends the lien until the Note, as modified, has been fully paid. The modification does not affect any other terms of the Note or the lien, both of which remain in force. As seen in Garner’s “Legal Writing in Plain English”, plain language not only provides simplicity, its hallmark is clarity and ease of understanding. Communications and writings from your lawyer should not sound as though they were written, exclusively for other lawyers. Rather than long, complicated and confusing sentences, plain language, that is void of archaic words and phrases serves you better. Sentences written in plain language are relatively short, and gaps between verbs and their objects are reduced providing for ease of understanding.

Good writing in plain language is a clear, straightforward expression, using only as many words as are necessary. Plain language avoids obscurity and renounces inflated vocabulary and convoluted sentence construction. As a proponent of plain language, I let my readers concentrate on the message instead of being distracted by the language.

If you are a licensed professional, the last thing you want is to have to try to interpret legalese from a board, agency or most importantly, your attorney. Also, you do not want the decision maker to have to work to understand the facts of your case. If you think your license may be in jeopardy your attorney should be not only knowledgeable in the controlling law, but also able to communicate it in simple to read, easy to understand, plain language.

If there is a threat against your license, contact Attorney Fabian Hoffner. With the support of an aggressive, attorney on your side, you can be assured your professional license remains protected. My commitment to you is to communicate using plain language and translate the law, and facts, in a clear, consistent, easy to understand way. For a free consultation, call 612- 206-3777 to learn about your options, your rights, and to have any questions you may have answered honestly and promptly.