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.
If I could get rid of one word, it would be…
— Brendan M. Kenny (@KennyBrendan) January 15, 2016
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:
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.
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.
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:
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:
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.
— Barry Popik (@barrypopik) January 17, 2016
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:
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:
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.