Lexico, the online collaboration between Dictionary.com and Oxford University Press, defines “legalese” as “the formal and technical language of legal documents that is often hard to understand.”
I had a chuckle when I read that, given that the purpose of most writing — legal and otherwise — is to communicate. But if it impedes understanding, why do so many lawyers continue to use so much old-fashioned prose?
The answer is not so simple.
Legalese has its place. When writing a contract, for example, a client may be well-served by a lawyer who includes lengthy definitions that anticipate even far-fetched contingencies. That agenda might turn a simple document into a multi-page one, but the fine print could potentially carry the day in a dispute.
At other times, a Latin phrase may provide the most straightforward way to convey a concept. For example, in drafting a will, the words “per stirpes” (by the branch) and “per capita” (by the head) can succinctly capture how property should be distributed and avoid the disputes that could arise if one were to paraphrase these well-pedigreed terms.
For the most part, though, lawyers resort to legalese for all the wrong reasons. Some lawyers rely on it to justify their exorbitant legal fees or because they think it will impress their clients. Others use it to cover up that they don’t know what they are talking about and to distract from the incoherence of their arguments.
And still others turn to it simply because it is easier to cut-and-paste from an old template than to do the hard work of rewriting. None of these is laudable.
When it comes to brief writing, sidestepping the rewrite can be downright harmful. Survey after survey has shown that judges find lawyers who write in legalese to be less persuasive than those who write in plain English. Judges might be older than most practitioners, but they weren’t born in the 1800s (and their clerks are younger than you or me).
So litigators do their jobs well when they dispense with lengthy introductions which squander that precious opportunity to make a good first impression (e.g., “Come now, [party A], by and through undersigned counsel….”). Clients benefit when briefs omit multi-syllable words that begin with “here” (e.g., heretofore, herein, hereinafter), “there” (e.g., thereupon, therewith, therein), and “where” (e.g., wherefore, wherein, wheretofore).
And writers enhance rather than diminish understanding when they avoid Latin phrases — like res ipa loquitur, ab initio, and a fortiori — that bring back bad law school memories. Latin is a dead language for a reason.
There will, of course, be exceptions to this rule. For example, the rules of the U.S. Supreme Court and the Maryland Court of Appeals refer to a “a writ of certiorari,” so that’s how litigators need to style that document.
And if you are litigating an issue in an area with a well-developed jurisprudence that distinguishes between in personam and in rem jurisdiction, you can’t reasonably avoid those terms. But the use of words and phrases of that kind should be borne of deliberation, not reflex.
My general rule of thumb is that if it feels awkward to say something out loud, I shouldn’t put it in a legal brief. Unless you are wearing a silly wig with wavy white hair, that rule might work for you, too.
Ayesha N. Khan, a partner with the Potomac Law Group, represents companies and individuals in trial and appellate litigation in Maryland, Washington, and federal courts around the country. She can be reached at [email protected] or 202-836-7136.