Lawyers Who Aren’t Sure How Modern English Works

Image from page 281 of "Gossip in the first decade of Victoria's reign" (1903) at https://www.flickr.com/photos/internetarchivebookimages/

You don’t have to look far to find legalese in legal writing. Just take the standard closings in affidavits and declarations. Here are three variations  used in just one jurisdiction.

Further Your Affiant Saith Not.

Further Your Affiant Sayeth Not

Further Than This Your Affiant Sayeth Not

We can do better. Start by reading Bryan Garner. As Mark Hermann notes, the jury needs to know that you sound like a human being:

Remember: Deposition transcripts are read at trial. I want you to sound like a human being, not an automaton.

The Curmudgeon’s Guide to Practicing Law, pg. 76.

Why don’t lawyers at least talk like regular people? Here are a few examples.

A Question About Tobacco and Health

Individuals of tender years

Why not just ask if smoking harms children?

An Infidelity Question From President Clinton’s Deposition

Culminate in sexual relations

I’ll let you fix this one.

And a “Truthiness” Question From President Clinton’s Deposition

Character for untruthfulness

How about this: “Did you think he was a liar?”

The Right Way to Ask Questions

Now that we know what not to do, watch Stetson Law Professor Charlie Rose ask questions the right way:

And make sure to check out Professor Rose’s YouTube channel. It’s full of great trial lawyer tips!

Featured image: “Gossip in the first decade of Victoria’s reign” from Internet Archive Book Images on Flickr.

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  • Paul Spitz

    I supervise law students working in an entrepreneurship clinic, and I tell them that every time they use “hereby” or “hereto,” a puppy drowns.

    • Brendan Kenny

      Excellent!

    • I work with contracts all day. I was once presented with a contract that opened with this: “The parties hereto hereby acknowledge that, pursuant to their mutual intention, understanding and agreement, the Services include, without limitation, the operations and activities meeting the special and distinct needs of Shipper in the conduct of its business which are described in Appendix C attached hereto and hereby made a part hereof.”

  • Kate Graham

    I’ve always hated the “further your affiant sayeth not” at the end of every affidavit, but was never sure what to put there instead. It seems to me the sentence could be omitted altogether (is it somehow unclear that the affidavit has concluded???), but it seems so ingrained in the practice culture. Could you say, “I say nothing further,” or “That is all I wish to say?” Or how about simply “BLAMMO! [microphone drop]?” (The latter would be my true preference, but would likely horrify my clients.)

    • Brendan Kenny

      According to Professor Joe Kimble and Bryan Garner, you can just cut it. http://www.michbar.org/file/generalinfo/plainenglish/PDFs/04_sept.pdf

      • Brendan Kenny

        You could also end with, “I’m out.”

      • Kate Graham

        Thank you! I will distribute about the office posthaste.

        • Brendan Kenny

          In arguendo, if you send said letter, be sure to notify said office that a true and correct copy of Professor Kimble’s article is enclosed as Exhibit A (hereinafter “Ex. A).

          • Did you really just use arguendo in a comment?

            • Brendan Kenny

              I hoped my comment was so over-the-top that no one would think I was being serious.

  • Lawyers don’t limit non-English gobbildy-gook to affidavits and other filings: For many of them, it carries over to their blogs and articles that lawyers and firms expect people to read, which is why readership is so low. It’s because the way lawyers are taught to write in law school is the exact opposite of how people read and absorb information. Too few have figured out that it’s about the music, not the words, as explained at http://tinyurl.com/n9f9sdd

    • Brendan Kenny

      I agree. And great blog post!

  • Chuck

    This assumes that you actually want to make it easy for lay people to understand you–I’m not sure that’s always the case. Besides, the phrasing frequently serves a purpose. For example, “Did you think he was a liar?” would not necessarily elicit the same response as “Did you ever form any opinion as to his character for truthfulness?” The first one seems to me to be more likely to elicit a simple “yes” or “no” response, while the second seems more likely to elicit a more detailed response (not to mention that the first question seems somewhat more inflammatory/prejudicial than the second).

    • Brendan Kenny

      I can’t think of a reason when you wouldn’t want a jury to understand you. But maybe I’m missing your point. And I think you should almost always (if not always) ask questions on cross that are yes/no (and preferably yes).

      • Chuck

        Your article at least begins by discussing “legalese in legal writing,” apparently broadly. I can think of a number of circumstances under which a lawyer might want to make legal writing difficult to understand for lay people (not necessarily jurors, but possibly them as well). In any case, my point is that the two questions are not the same–one is much more confrontational than the other, for one thing.

        • Brendan Kenny

          Maybe my imagination is limited. I just can’t think of when it would be good to intentionally make legal writing or oral questions difficult to understand. But I agree that writing and oral questions are two different things.

          • Chuck

            You really can’t think of a time when it would benefit a lawyer more to have the jury uncertain about a point of law or fact than for jury to understand it completely? In any case, as I have intimated a number of times, clarity isn’t everything. Tone matters, accuracy matters, etc., etc.

            • Brendan Kenny

              Maybe we are talking past each other. In the grand scheme of things, I can’t see how it would be better to confuse the jury than make a clear argument. But if you could gave me one real-life example of what you mean, I might change my mind.

  • Otter83

    “Did you ever form any opinion as to his reputation for truthfulness” is a foundational question necessary to the admissibility of reputation testimony under FRE 405. Awkward? yes. Bad lawyering? Not unless you think that failing to lay a proper foundation is the key to success.

    • Brendan Kenny

      My thought is that using awkward legalese is bad lawyering. Of course, you’ve got to lay a foundation. But that’s the bare minimum. The rest of the Terry MacCarthy cross-examination videos paint a picture of how much background questions on cross can do to build your case.

  • Wilbur

    “…shall take nothing from this action and go henceforth without day.”
    *dies.

  • SterlingCares

    Lawyers are expected to meet a word limit as journalist do. As noticed in much of the comments an overused and unnecessary word in the legalese is “that” – Lawyers who are masters of the language should test themselves and see if they can write the text without using “that.” Once you begin to delete the word you will begin to see it will come naturally to exclude the word as well as to learn the proper use of “which,” you will find a more coherent read. . .