| Oregon State Bar Bulletin — FEBRUARY/MARCH 2009 |
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In love with legalese?
By Megan McAlpin
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Recently, a student asked me what real lawyers would think of the plain
English agreement he was drafting. He worried that prospective employers
would question his abilities if they saw a document completely devoid of
any wherefores or hereinafters. So, the question is, do lawyers
actually like plain English? Or are we still in love with legalese? Take
a look at these tips for avoiding legalese, and then decide: do you really
prefer plain English?
Avoid Jargon
Midway through a recent conversation with a doctor, I realized that I had
no idea what he was saying. At one point, I was convinced that he wasn’t
even speaking English. Well, he was speaking English, but it was so laced
with medical jargon that I couldn’t understand it.
We lawyers have a jargon of our own. The problem, especially for law students and new lawyers, is distinguishing between terms of art, which you can’t replace, and legal jargon, which you can. Consider a few examples of replaceable jargon:
in the event that (replace it with if)
not less than (replace it with at least)
subsequent to (replace it with after)
thereafter (replace it with later)
None of these phrases has any legal significance. They can all be easily replaced. Just do it.
Avoid Doublets and Triplets
One of the more puzzling habits of legal writers is the use of three words
to say what one word could. Consider the employment agreement where the
employer "employs, engages, and hires" an employee. Is there
a reason that the employer can’t just employ the employee? And what
about the will in which the testators "give, devise, and bequeath"?
Wouldn’t just one of these do the trick?
Delete Every Shall
Lawyers use the word shall in writing, even when they would
never speak the word in conversation. The most obvious reason — the
one on the tip of your tongue right now — is that shall is a
mandatory word. And, while it’s true that shall means has
a duty to, we don’t always use it this way. Consider the following
sentence:
Neither party shall assign this Agreement, directly or indirectly, without the prior written consent of the other party.
Doesn’t the writer really mean that neither party is allowed to assign the agreement? If that’s what she means, she should simply use the word may.
Of course, there are times when shall really does mean has a duty to. But in that case, wouldn’t must, will, or is work? After all, courts in almost every jurisdiction have held at various times that shall can mean must, may, will, and is. Wouldn’t it be smarter for you to decide what you actually mean rather than waiting for a court to decide for you?
Don’t Use Provisos
A proviso is any phrase that begins with provided that. Take, for
instance, the following dreadful proviso:
Provisos in legal writing are not necessary provided, however, that if a writer cannot find another way to express an exception, then the writer shall use a proviso to express said exception.
There are so many things wrong with that sentence, it’s almost hard to know where to begin. But let’s set aside the bad advice and focus here: the unnecessary proviso. Lawyers use provisos for a lot of things, but their result is often to turn a perfectly reasonable sentence into a long, almost indecipherable tangle.
In addition to making a sentence unreasonably long, a proviso can be problematic because the phrase "provided that" can mean at least three different things.
It can mean except (as it does in that ugly sentence above).
It can mean if. (Provided that the Employee meets the qualifications, she may participate in employee benefit programs established by Employer.)
And it can mean also.(Employer will pay Employee on the 1st and 15th of each month, provided that Employee is a full-time employee; and provided further that Employee signs her time sheet and delivers it to payroll by the 25th and 10th of each month.)
This last example is particularly bad because the first proviso means if and the second means also.
Because provisos can mean different things, you just shouldn’t use them. Rather than using provisos, simply say what you mean. If you mean except say except (or maybe even find a more precise word!)
Example: Provisos in legal writing are not necessary. However, if a writer cannot find another way to express an exception, the writer can use a proviso.
Note: If you are having a panic attack about separating your
rule and your exception with a period, take a deep breath. It’s okay.
The exception is still there and, better yet, it’s now expressed in
a way
that your reader can more easily understand it.
Avoid Word-Numeral Doublets
For years, I assumed there was some magic in the word-numeral doublet. After
all, every contract I ever read contained them. And, besides, when I write
checks, I write out both the numeral and the word, right? Must be magical.
Well, as it turns out, it’s not. The word-numeral doublet probably began as a safeguard against altered documents, but legal documents are a lot less susceptible to manipulation today. (Unlike checks, which are still hand-written. That initial numeral could still be changed pretty easily. But, really, who writes checks anymore anyway?)
While some lawyers will tell you that word-numeral doublets prevent discrepancies in numbers, I’m not sure this is true. After all, what if a lessee agrees to pay a lessor "one thousand and no/100 dollars ($100.00)". Doesn’t this just open up a world of problems that didn’t exist before you decided to double up? Of course, the possibility for getting the number wrong is still there if you use just the numeral — which is a great reason to double- and even triple-check your work. But it’s just not a great reason to use a word-numeral doublet.
Don’t Habitually Use Parenthetical
Shorthand Names.
This article (hereinafter "Article") has attempted to list several
of the more egregious forms of legalese (hereinafter "Legalese"),
but some types of Legalese aren’t really legalese at all, but just
bad lawyer habits (hereinafter "Bad Habits").
While sometimes it’s useful or even necessary to use a parenthetical shorthand name, it isn’t always.
Would you be confused if, three paragraphs from now, I referred to this article rather than Article? Would you wonder whether I really meant another article? Probably not. But, if you would — if there is a genuine chance that your reader might be confused — using a parenthetical shorthand name might be helpful.
Using a parenthetical shorthand name might also be useful where you are planning to use an acronym. Now, be careful here, too. No one likes to read a page full of alphabet soup. But where you want to use a well-established acronym, you may want to spell it out first. For example, if you’re going to refer to the Family Medical Leave Act as FMLA, then you probably want to do this:
The Family Medical Leave Act (FMLA) provides unpaid leave to employees under certain conditions.
Giving your reader just this little extra help will ensure that she won’t stumble on the acronym for even a moment.
Conclusion
Now that you know what my student meant by "plain English," what
do you think? Are we actually still in love with legalese?
Sources
Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises
(The
University of Chicago Press, 2001).
ABOUT THE AUTHOR
Megan McAlpin teaches legal research and writing at the University of
Oregon School of Law. You may contact her at mmcalpin@uoregon.edu. She’d
love to hear your thoughts on legalese.
© 2009 Megan McAlpin