Lawyers, Stop Writing (and Saying) These Things Immediately


Many lawyers are tired of hearing about legalese, and many still haven’t embraced plain language in their own legal writing and speaking. This post won’t try to change their minds. If Bryan Garner’s life work can’t convince lawyers, how can I?

But there is another issue often lost in the plain-language wars: where did all these legalese words come from? The perception on both sides seems to be these words and phrases once served a purpose, but don’t anymore. But what if we discovered that they never served any purpose?

Legalese as Reminiscence

When I recently conducted a Twitter poll on most-disliked legalese words, I was struck by this fact: 25% of the participants said they loved legalese.

Let that sink in. 25% of lawyers active enough on social media to vote in a Twitter poll are not on the plain-language bandwagon—and they don’t want to be. I have a theory.

The Majesty of the Law

No doubt about it, some things in the law should sound solemn and ancient, because as Lord Hewart noted, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

For example, most lawyers wouldn’t change the opening of every Supreme Court session:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.

But when the court goes all-out old-fashioned, we often get this (ending at 6:42):

One can only imagine what they jury thinks after hearing that recital.

And when lawyers try to tell a story using legalese, it’s as though they are trying to tell Star Wars like this:

Star Wars

Lawyers are smart people, so our persistence in alienating our audience had puzzled me. Then I had this exchange with an old friend (not a lawyer) about a plain language post I wrote.

FireShot Capture 83 - (21) Brendan Kenny - My pet peeves abo_ - https___www.facebook.com_brendan.k

Chris might be on to something. Lawyers persist in using clumsy language even when it makes us less persuasive to our intended audience. Maybe that is because we believe or fear that words mean things when they really don’t. This may be a superstition, but it is a superstition that all the arguments in the world in favor of plain language will not overcome.

In the last century, lawyers have recognized that constantly using Latin words and phrases when English ones serve just fine made legal writing and speaking unnecessarily stuffy and ambiguous.

Of course, there are some terms of art that don’t have ordinary English equivalents, such as res ipsa loquitor, prima facie, and alibi.1 Other words with ordinary English equivalents are nevertheless so standard as to be unabjectionable, such as bona fide, amicus curiae, and versus.2 Few seek to remove this type of Latin from the law.

Today, most lawyers will recognize that writing or saying in praesenti (“in the present”), contradicto in adjecto (“contradiction in terms”), or ex abundenti cautela (“out of abundant caution”) is to present “pompous, turgid deadwood.”3

Perhaps many lawyers today resist cutting out non-Latin legalese because they view it with the same respect that 19th-century lawyers viewed Latin. Let’s see if that respect is warranted.

Grammatical Grotesquerie

This is a term Bryan Garner uses to describe legalese that no one intended to make a thing. He notes that when he was a young lawyer in Texas, the traditional denial in a defendant’s answer went like this:

“Defendant generally denies each and every, all and singular, the allegations contained in the plaintiff’s original petition.”

—Bryan Garner, Garner on Language and Writing: Selected Essays and Speeches of Bryan A. Garner 319 (American Bar Association) (2009)

He surmised that the justification for “all and singular” was likely in the same vein as Chief Justice John Fortescue’s famous statement: “We have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.” After doing some digging, the first use of “all and singular” he found was in a 1847 Texas Supreme Court rule, and he notes:

The anonymous drafter of that rule, perhaps a justice of the Supreme Court, perpetrated a synactic blunder that would be repeated (with minor variations) in Texas pleadings for more than a century and a half.

Id., p. 319

It’s bad enough that lawyers use antiquated phrases that have little or no meaning. It’s worse when we don’t even use the same antiquated language. For instance, I found four different versions of the sadly common “Further your affiant” language at the end of an affidavit used in Minnesota:

Further You Affiant Selection

We should note three things about “Further affiant…”

  • There is no reason for this sentence because the affiant has nothing else to say—anyone can see this by reading the affidavit.
  • Sayeth is more more commonly used today, even though saith was more commonly used when real people actually used the words (see Ngram below).
  • The only version that makes literal sense is the one that uses naught—this is the only one that says the affiant says nothing further.


Here’s a challenge: Find oddest phrase that lawyers routinely use in your state and investigate its origins. Cut it from your writing if you discover that it is unnecessary and encourage other lawyers to do the same.

The Whys of Whereas

“Whereas” is one of those words that pops up on all sorts of contexts. In my experience, many lawyers think the word needs to be in anything signed by the court.

When I was working in the California Attorney General’s Office, I needed to draft a routine stipulation for the court to sign. Like the Bryan Garner fan I was, I wrote it in plain English and sent it to opposing counsel, who worked for a top-25 law firm. Opposing counsel responded by redrafting the stipulation as a whereas-ridden monstrosity. My then-supervisor responded with characteristic wit:

Mocking stipulation

When I called opposing counsel about it, he said they always used whereas in stipulations and his managing partner had insisted on using them in this case. This led me to ask: is there any reason to use whereas clauses? According to Garner, the answer is no:

One significant feature of these whereas clauses is that they usually have no legal effect: they are merely preliminary statements providing introductory background information before the binding promissory language.

—Bryan A. Garner, A Dictionary of Modern Legal Usage 929 (Oxford University Press) (2nd ed. 1995)

Let’s break this example down:

  • Whereas clauses have no purpose in contracts—where they were originally used.
  • Lawyers in cases with no connection to contract law include whereas clauses in routine stipulations.
  • These same lawyers fear that removing the whereas clauses will invalidate the stipulation.

Until lawyers can rid themselves of this fear, they will never embrace plain language in writing and speaking.

The Direction of Your Attention

Lawyers love to direct people’s attention to things. It could be an exhibit (“directing your attention to the bloody glove”), another witness’s testimony (“I’d like to direct your attention to the plaintiff’s direct examination”), or a legal concept (“directing your attention to the reasonable-person standard”). As many have already written, there are much better ways to transition into another topic.

In this post, I have two different concerns: what is the purpose of the phrase and where does it come from?

On the first point, I have found absolutely no evidence that the phrase has any special legal meaning. If anyone finds evidence that it does, please let me know.

On the second point, I have heard rumors that this phrase was used by lawyers in Elizabethan England, but I’ve only been able to track the phrase back to 1784.

Almost no one outside of the legal community has used the phrase since the early 20th Century.


And if a ScotusSearch of US Supreme Court oral arguments is any indication, even lawyers are using the phase much less often. Lawyers and the justices used the phrase a total of 86 times since 1959, but only 8 times since 2000.

Enclosed Please Find Gobbledygook

Legal motions and correspondence are replete with “enclosed please find,” and its close cousins “attached please find,” and “please allow.” This is nothing new.

These pleases have been criticized by writing treatises since the 19th century.4

A more ridiculous use of words, it seems to me, there could not be.

—Richard G. White, Every-Day English 492 (1880)

Enclosed please find’s lineage is not particularly distinguished or even connected with the law. It seems to have picked up steam just as “herewith enclosed” declined, and it became part of the form language used in magazine mail order forms, like the one below:


Attached please find has a similar background, and the first use I could find was this request in 1856 to place advertising in a magazine:

Earliest use of attached please find

Today, it serves as an electronic enclosed please find typically used for work e-mails.


And don’t forget the begging that please allow this evokes:

Please Allow This To Serve...

In this instance, lawyers can stop saying please and just attach, enclose, and include.

Check Your Premises

“Premises considered” used to be a word people actually used in Jamestown in the 17th century:

The Heathen enter frequently into some of the remote dispers’d habitations of the Christians, the premises considered, what can they see which should make them in love with their Religion?

-Anonmyous, “Advisive Narrative Concerning Virgina” (W. Godbid) (1662)

The phrase hasn’t had a place in standard English since 1810.


These days, premises considered shows up in the pro-forma conclusion to a shapeless pleading written by a lawyer who has no clue what it means:

One who writes “wherefore premises considered” in the prayer of a court paper would be hard pressed to say what the premises are, other than everything that has gone before.

—Bryan A. Garner, A Dictionary of Modern Legal Usage 685 (Oxford University Press) (2nd ed. 1995)

We need to let this one go too.

To Know These Presents Is to (Not) Love Them

Yes, lawyers still write know all men by these presents to mean “take notice.” This one goes back a long time. It first comes up in Google Books in 1695. And no, there probably was never a reason to use this phrase, either.

Wherever lawyers stand on legalese, they should, at least, stand on reason.

  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 518 (Oxford University Press) (3d ed. 2011). 

  2. Id. 

  3. Id. 

  4. Bryan A. Garner, Garner’s Dictionary of Legal Usage 314 (Oxford University Press) (3d ed. 2011). 


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  • Paul Spitz

    I teach law students that every time they use “hereby” or “hereto,” a puppy dies. If they use both in one sentence (the parties hereto hereby agree), the puppies die an agonizing and prolonged death.

    “The parties hereto” – WTF other parties could we possibly be referring to????

    I hate “for any reason whatsoever.” There’s no need for “whatsoever.”

    I routinely change “in the event” to “if,” and “utilize” to “use.”

    • Brendan Kenny

      Yes to everything you’ve said.

      • Paul Spitz

        The other thing that I try to emphasize is writing in the active voice, rather than the passive. It’s stronger, and less wordy:

        “He wrote the document”
        “The document was written by him”

        • Brendan Kenny

          Yes. Using the active voice more is a quick and easy way to improve your writing.

  • Robert O’Keefe

    I agree that we should stop using “whereas”, but those clauses (aka recitals) do serve a purpose. Garner correctly notes they provide some introductory background but I disagree there is no legal effect. It’s true that a judge may not see them as binding in subsequent litigation, however the target audience is really anyone who reads the contract in the future and was not involved in the original transaction. They are especially helpful in explaining unique transactions, defining the scope or providing context.

    • Brendan Kenny

      Interesting. I will look into this. Do you have any recommendations of what I should read?

      • Robert O’Keefe

        Here’s a blog post from a kindred spirit: I believe Ken Adams also addresses recitals in his book on contract drafting. I’m not suggesting it’s a rule of contract drafting (just check the comments on the Adams post), just that they do serve a purpose.

        • Brendan Kenny

          I appreciate this. I don’t want to overstate or misstate things. I’ll check it out. Thanks!

    • Kate

      I agree. Including certain context about the transaction in the contract’s preamble effectively guarantees that it will be considered as part of the factual matrix underlying the contract (in Canada, at least, this type of analysis is done where there is an ambiguity in the document itself). I have also found it useful occasionally as counsel reviewing the document many years after its creation, when the original parties may not be available to explain it.

    • Lorin

      I agree that whereas clauses are legally meaningful: they provide context and direction to readers and can help fend off arguments of the mistake of fact/law ilk.

      • Brendan Kenny

        Do you mean the function whereas clauses serve, or the word whereas?

    • BEPearceLaw

      Also very useful when dealing in pre-bankruptcy situations or other situations where there may be a fraudulent transfer risk (e.g., a pledge of collateral for another’s debt).

  • PopperlinRosebud

    Glad you mentioned how tired this topic is getting. I agree with a lot of the stuff you said and the thought behind it. It’s stupid so many of us use these words that nobody knows what they mean or why they’re there. But it is annoying hearing about it all the time. Law isn’t about innovation, it’s about protecting your client from something that happened or to protect him from something happening in the future. It doesn’t need to be pretty, it needs to be airtight. There’s so much to worry about in law that I can’t help but be skeptical of the lawyers who have enough time to worry about this kind of crap.

    • Is it airtight if the people signing it and interpreting it can’t understand it?

      • PopperlinRosebud

        Yes, in the sense that if everyone does it and has done it for so long without any negative repercussions, then the only thing you have to lose by removing it is an unknown risk. Why subject yourself to that for making your writing appear more modern and less-legalese? Take for example the request included in many domestic motions — “and for any such further relief as the court deems just and proper.” <– nobody knows why everyone includes that but it keeps getting included because of the risks of not including it. It's odd and strange. There are tons of examples of this sort of thing. It's irritating, but I can't help but assume that in our profession of tradition we do things for specific reasons. All that to say, I would be happy letting go of all of the outdated and needless legalese.

        • Brendan Kenny

          These days, there are plenty of lawyers who are using plain language to communicate effectively. Why assume that the clients of lawyers who can’t or won’t communicate effectively aren’t already paying a price?

          • PopperlinRosebud

            I don’t follow your question. And I disagree w what ur saying ab how many lawyers use plain language. If by plenty you mean dozens of blawgers and 1% of practicing lawyers then yea, I’ll agree.

            • Brendan Kenny

              Your numbers may be right. My point is that even if the vast majority of lawyers don’t use plain language, why assume that using plain language isn’t very important?

              • PopperlinRosebud

                Haha, I’m sorry but that’s the second time you’ve asked a question that contains a double negative. It keeps tripping me up. Takes me back to logic class. Anyways, I personally would prefer that legal writing be modernized so that it isn’t just outdated hereins, whereases, and heretofores. But most lawyers follow tradition. Most judges do too. Having a pleading or motion that bucks at tradition by simplifying things to plain language puts yourself at risk of being misunderstood by the judge with 30 years experience reading things a certain way. Yes, some judges will appreciate the rebellious and simplified approach, but the benefits don’t outweigh the risks, IMO.

                • Brendan Kenny

                  Maybe you’re right about the double negative. I think the article I talk about above responds to this comment too.

            • Richard Schafer

              As Ken Adams has shown in his research, much of that “tried and true” legalese really isn’t that risk-free, because the courts feel free to interpret it in different ways. If you don’t know why the language is necessary or what it really means, don’t trust it just because you found it in whatever template you’re using.

              • Brendan Kenny

                I couldn’t agree more.

              • PopperlinRosebud

                I disagree. But I’m open to the idea that our opinions are based on our personal experiences. I’m in state district court. My judges don’t have time for things I wish they had time for. They don’t consider nuances like I wish they would. It isn’t uncommon to disregard many issues that could be raised because of the limited time available. It’s disheartening, but this is life in a state district court. All this to say, state district and superior courts operate as much on the local unwritten rules and procedures as they do on state statutes and caselaw. It’s not a matter of copying whatever template someone is using, it’s about following the customs that most other attorneys in your jurisdiction follow. When I put something before the court I want the focus to be on the content and requested relief. I don’t want the focus to be on the formatting of my motion or the uniquely simple writing style. Indeed, most lawyers and judges are so accustom to legal jargon that seeing it in the standard places almost acts as an identifying marker to let the reader know what he’s looking at.

        • barbara occhiogrosso

          Just because “everybody does it” and has been simply following one behind the other for so long, does that make it valid? : ) Humans do this a lot, and it’s not necessarily a good (or useful) habit.

          • PopperlinRosebud

            That’s very true. The difference here is that within the various legal communities around the country (local, state, federal, etc.), attorneys and judges have certain expectations. Almost like there’s an unwritten rule where certain jargon / legalese must be used if it wants to be taken seriously or read quickly. If you do something too extreme or different from what people expect then you put the reader in the position of wondering about things they shouldn’t be wondering about.

  • justinef

    I chuckled watching the video. Outstanding (&how did you find it?) As a potential consumer of legal services and citizen of judicial systems in general, I do not think using Latin and legalese here and there is a huge deal. I may be biased b/c I’ve always wished I could have studied linguistics and antiquated languages. That said, the above video example is simply a lesson in ineffective oral communication.

    Your 25% poll result is fine by me. I don’t know why,,but I find it reassuring that attorneys and judges know 50 (or however many) Latin terms and words. It’s analogous to doctors knowing the Greek and modern Latin words/terms for parts of the human anatomy.

    The ‘always use 100% plain English’ crowd is a bit extreme for me.

    • Brendan Kenny

      There’s a lot of people who agree with you, both lawyers and non-lawyers. I guess it wouldn’t be a problem if legalese didn’t get in the way of effective communication and persuasion. But I think it does.

  • Michael Letourneau

    Thanks for a very interesting article. Personally, I agree with your overall tone, but I’ve found in my practice as a commercial solicitor (more on that in a moment) that you have to pay careful attention to why you use some turns of phrase.

    I practice in Ontario, Canada, and so our laws can be described as a curious hybrid of inherited English approaches (largely codified in statute now), American approaches that we’ve adopted because they are sensible, and homegrown approaches (which may or may not be sensible). As a result, we have a lot of arcana kicking around in our laws (including the “barrister” and “solicitor” distinctions, even though every lawyer in the province is licensed to practice as both).

    One example is recitals – “whereas clauses”. I just spent most of my weekend writing long chains of recitals in what would be relatively simple documents that, taken together, will (hopefully) resolve a complex title problem. Why all the recitals? Because of s. 1(1) of our Vendors and Purchasers Act which sets out that recitals in title documents that are at least 20 years old are presumed to be true as written if you ever bring an application before the court under that Act (such applications are usually in the context of resolving a dispute over the title to a property on a sale). Since this matter deals with a lease that got several decades left to run, I’m leaving evidence for potential future use. (See )

    • N. Munro Merrick

      I have always thought that the purpose of Whereas clauses was not only to provide the reader with background information, but also to set forth facts that both parties agreed upon. In 37 years of drafting contracts I have never used a Whereas clause, but I include words like, This contract is made with reference to the following facts: A… B… etc.

      • Brendan Kenny

        Both your comments are interesting. I don’t doubt that some recitals are needed for contacts, but I think many could be written much more clearly. But it’s not the sort of work I do, so I probably shouldn’t comment further.

  • Megan Hunt Dell

    I do use Whereas clauses when I’m entering a consent order (and the content of the Whereas clauses states the basis for the parties’ consent) and in settlement agreements between litigants — specifically, I practice exclusively in family court, and the Whereas clauses are a good place to put the current factual situation that underlies the terms of the parties’ agreement.

    Why are those facts legally significant? Because if the agreement contains provisions affecting children, then those terms are modifiable in a subsequent case if the petitioner can show that there has been a change of circumstances since the last order. Showing change = proving the circumstances underlying the last agreement + proving the current circumstances. When a case is settled, we don’t usually have factual findings; including either the uncontested facts or each party’s allegations against the other as Whereas clauses in an agreement can help CYA in a subsequent case. (This is especially true with child support amounts. How do you prove that a modification of child support is warranted when no one can document what the last number was based on?)

    • Brendan Kenny

      I think I keep asking a dumb question and maybe I’ve already gotten an answer. Is there any need to use the word whereas in whereas clauses.

      • No, you are not asking a dumb question. Everyone seems to think you are arguing for the elimination of background information in contracts. Which is silly. Of course it can be helpful to have background information. But you could just as easily start a paragraph with “The parties decided to enter into this agreement because … ” and it will make more sense to anyone who reads it.

  • sunshipballoons

    Direct your attention is an EXTREMELY common phrase. It’s just not common in WRITING.

    I find the twitter poll with 44 respondents meaningless (to the extent that it distracts from the author’s mostly reasonable point), especially because, beside the inherent problem with Twitter polls and the few number of respondents, (1) the one pro-legalese answer is the only funny option; and (2) People whose most hated legalese is not one of the three options are likely to choose the “I like legalese” option.

    I find the objection to “please find enclosed/attached” strange. His problem doesn’t seem to be that it’s too wordy. He seems to think you shouldn’t say that at all. That’s ridiculous. It’s the ONLY thing to say if your just writing a cover letter noting the attachment. And, in general, it’s helpful to say what’s attached to a longer letter/email. The “please” is polite and the “find attached” avoids the passive voice of “attached is.”

    Also, when you redact an author’s first name, but not his last name and all of his professional information, you might as well not redact anything.

    • Brendan Kenny

      Interesting points. A few responses.

      (1) I don’t hear many people use the phrase “direct you attention” to point the person to something. But if you mean something like “Guys, you really need to direct your attention to this problem”, then I agree that this use of the phrase is common.

      (2) The Twitter poll: This was mostly just for fun. I don’t think a Twitter poll with 44 votes has much statistical validity.

      (3) “Enclosed please”: My point is that we can just say something like “I have enclosed” or “I have attached” instead.

      (4) I didn’t redact the email in the article. I found it that way online.

      • sunshipballoons

        (1) yes, that is what I meant. Your example is pointing the person to something, no? In any event, you’re talking about writing, not speaking, and it is hard to argue with your criticism of using this phrase in writing.

        (3) That’s a good solution. I often use that alternative, but I also don’t have a problem with and sometimes use “please find attached” precisely for the politeness. Also, I don’t think “please find attached” is really “legalese,” particularly because I saw that phrase used just as much in my pre-law days in marketing. This sort of colloquialism seems to me appropriate in emails, as opposed to your other criticisms, which seem to apply more to phrases used in formal legal writing.

        (4) Well, that was some unfortunate redacting by whomever did it.

        • Brendan Kenny

          (1) I am talking about both writing and speaking, though most of the article dealt with writing. When I wrote about direct your attention, it was coming from years of hearing the phrase at depositions.

          (4) Agreed.

  • Bruce Poropat

    So you can kill someone or murder them, but in Massachusetts you better not do both.