Law is a tool. It’s a tool for everyone to use. And with increasing numbers of people representing themselves in court and using legal how-to books and online resources, everyone is using it. Lawyers and judges have a responsibility to talk and write clearly so that others can effectively use the tool.
Legalese is the term used for language used by lawyers and in legal documents that is difficult for ordinary people to understand. Here are four techniques that exclude others:
1. Using two or three words when one would do. In the title of this article, “cease, desist and be at an end” is an example of a legal triplet. Doublets and triplets have been used to cover all bases. If I’m concerned that a judge is going to quibble about the meaning of “cease” or “desist” or “be at an end,” then I’ll give him all three (and yes, it is often him) just to be sure he understands what I meant. Lawyers do this when writing laws for legislators and when writing contracts.
2. Relying on words that exclude non‑lawyers: henceforth, hereafter, hereinafter, heretofore, aforementioned, and so on. For the grammar nuts, these are called pronominal adverbs and are formed by combining a pronoun with a preposition. Wikipedia identifies 77 of them. Historically lawyers and judges knew the subtle distinctions between them but now these hallmarks of legalese do a fine job of excluding most lawyers too, many of whom would be hard pressed to spot a pronoun or a preposition, much less recognize a pronominal adverb.
3. Throwing in the odd Latin phrase. Even among today’s very educated, Latin looks pretty pompous. And it’s pretty misunderstood too — i.e. is short for id est and means “that is.” e.g. is short for exempli gratia and means “for example.” So why would you use either of them when you can say “that is” or “for example”?
4. Writing in the passive voice. Passive sentences leave you wondering “but who did it?” For example, “should be used” in the title of this article is passive. Better — and in the active voice — is “we should not use.”
Courts generally agree with the move away from legalese. In the 1998 case Rizzo Shoes, the Supreme Court of Canada said to read the words of a law in context and in their grammatical and ordinary sense considering what the law‑makers were trying to achieve. The same is true for contracts — courts say that most of the time, we should interpret contracts to achieve what the parties want, and, so long as nothing is ambiguous, you should give the contract’s words their plain and ordinary meaning.
For laws and contracts, then, courts are looking for words that give one clear meaning — neither vague nor ambiguous — the opposite of legal triplets, doublets, pronominal adverbs, old Latin expressions and the passive voice.
Clarity in the courtroom
Some judges have embraced clear writing.
Justice Quinn of Ontario’s Superior Court of Justice is my favourite. Truth is stranger than fiction, and Quinn finds a way to “find the funny” in the stories he hears. His decision in Miller v. Carley begins:
[1] After a busy day conducting illegal drug transactions, the plaintiff, the defendant and a mutual friend stopped at a corner store where the defendant purchased some “scratch” lottery tickets. One of the tickets proved to be a $5-million winner.
One short paragraph and we already have a sense of the plot and the characters of the tale Quinn heard.
Another is Ontario Superior Court Justice Nakatsuru who got some press a couple of years ago when he released his decision in R. v. Armitage. He begins:
[1] This case was heard in the Gladue court at Old City Hall in Toronto. Jesse Armitage is a troubled man of Aboriginal heritage who was sentenced by me a number of months ago. At the time I gave my decision, I said that I would draft and release a written decision. This is that decision.
[2] Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.
The Gladue court was established in 2001; the accused are First Nations people who have a right to be heard but also to fully understand, applying the principles set out by the Supreme Court of Canada, in the case of Gladue.
[4] I know that all accused, whether they have any Aboriginal blood or not, should have [a right to be heard but also to fully understand.] Judges struggle to make sure they do. However, when judges write their decisions, they are writing for different readers, different audiences. Judges write not only for the parties before them. Judges write to other readers of the law. Lawyers. Other judges. The community.
While this has not yet become the model for all decisions, we can only hope that we’ll see more of Nakatsuru’s approach.
Leading constitutional lawyer, Eugene Meehan, is my writing inspiration. I have never met Meehan but he writes Supreme One‑Liners, the simplest and clearest summaries of court decisions. Some lawyers or maybe clients might say that Meehan’s style of writing doesn’t justify the fees lawyers charge, thinking that the loftier something sounds, the more legal weight it carries. But surely most clients know that taking something complicated and boiling it down to its essence takes smarts. We’ve all heard: “If I had more time, I would have written a shorter letter.”
Think about this when you’re hiring a lawyer. Don’t you want to understand what they’re telling you?
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
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