The Law Does Not Require Legalese

https://writing.kemitchell.com/2023/01/30/Law-Does-Not-Require-Legalese

by feross • 3 years ago

45 22 3 years ago

writing.kemitchell.com

ggm• 3 years ago

Dorothy Sayers had a couple of quips about the law in Peter Whimsey. Saying "oh, absolutely" in a conversation with a lawyer about a will having consequence, and the exact legal meaning of words like "wholly" in the context of food and drink made wholly from pears. She'd worked in advertising and may well have come across the "slug in the bottle" case, or something similar. And of course wills are often at the heart of detective fiction.

The point about contracts and the meaning of words at the time as distinct from in the present lawsuit is one of those "yes.. but how do you KNOW" moments. It feels like a statement of intent which goes to he-said/she-said except perhaps there is some context outside of the contract docs which sets what was intended, but that runs counter to the overall impression "its what the contract said, and not extraneous words"

kmoser• 3 years ago

I'd imagine that much of what we call legal jargon remains in use because it is accepted precedent, which courts tend to look favorably on. In other words, if there are many legal cases where "foo" is used to mean "bar", then lawyers will continue to use "foo" to mean "bar" even if it seems weird to the rest of us.

By the same token, if you were to write a contract in non-legalese, it would be more open to interpretation simply because the language hasn't been as thoroughly tested in the courts. Sure, if you're clever and write clearly then that might not be much of a problem, but are you really smart enough to write a contract that doesn't contain any unintentional loopholes that the other party's lawyers will pounce on if given the chance? A misplaced comma can spell disaster. That's one thing lawyers tend to be trained to do: using language that courts understand and agree on the meaning of.

To compare it to programming, I think of legalese as crufty code that simply remains in use because it has always remained in use, and ugly as it may be, we all know what it does. Woe is the young upstart developer who tries to rip it all out and replace it with something modern, much to the consternation of the greybeards who had a mutual understanding of how things have always worked previously.

ss108• 3 years ago

This is quite accurate.

aeternum• 3 years ago

Legalese came to be because lawyers were paid by the word.

They're now paid for their time, but I would not discount the continued strength of this incentive. Longer contracts and complex legalese still correlates with more billable hours.

doctor_eval• 3 years ago

I’ve seen a trend here in Australia for lawyers to be paid on a per-contract or per-case basis. Seems to be a good outcome if we value brevity.

habitue2• 3 years ago

I feel like most of the legalese comes in when the lawyer knows the case law between the cracks of the law as it's written. "So you can say X that way, but there was a case in M vs. G in 1989 that held that it could be interpreted as X' which is not what you want. To close that loophole, we usually add this clause..." Etc

actionfromafar• 3 years ago

Sure, for excellent lawyers. There has to be a lot of cargo-culting there too.

habitue2• 3 years ago

that's a good point

qthrowayq0909• 3 years ago

Legalese is a way for the lawyers and those who can afford them to wrap up the other party in a piece of paper and make him/her sign off to things that normally wouldn't.

A side-effect is chocking up a lot of entrepreneurship/inventions/partnerships/etc in favor of protecting the said parties.

psychphysic3• 3 years ago

Legalese is the equivalent of scientific Latin (heck it's often literally Latin).

The point is that if you make a distinct dialect then you can build precedent.

If you write in casual English you get situations where two people disagree on the meaning of a contract they both signed and the writer can't say well I used the phrase "hullabaloo" because the court decided that previously it means "ruckus" but not necessarily "drunk".

drewcoo• 3 years ago

The point is that if you make a distinct dialect then you can build precedent

Science is not built on precedent but on facts. Or one might even argue it's fashion with fact-based influences.

Many problems of our legal system stem from relying on precedent and not facts. But none of those are attributable to terminology.

well I used the phrase "hullabaloo" because the court decided that previously it means "ruckus" but not necessarily "drunk"

Your examples of unclear language would not be a problem, at least in California, according to the article because those words and phrases are not mutually understood.

I think a bigger problem with "mutually understood" is that words and their meanings change. And we often don't agree on definitions. Dictionaries describe use. Literally now means figuratively. Dogs and cats are sleeping together.

xboxnolifes• 3 years ago

Law is not science. There is nothing to test or discover. It is a declarative set of statements.

psychphysic3• 3 years ago

You're completely missing the reasoning by such a wide margin I can only assume it's intentional.

Ironically one of the top links on HN now is about good faith discussion.

JonChesterfield• 3 years ago

I'm sure contracts can be written in plain English instead of standard legal terminology. It'll work exactly analogously to programming a computer in plain English instead of in standard programming terminology.

An ambiguous contract is very like an ambiguous program. Nice when it goes your way, expensive to rely on.

kemitchell• 3 years ago

Judges aren't binary computers. They're people. It's people all the way down.

On the other hand, there's no halting problem. Get on the docket, get a result. Even if the result is "No standing. Go away."

projektfu• 3 years ago

A distinction should be made between legal jargon (witnesseth, to wit) and legalese, which is often relatively plain English that I find is intended to obscure the point in a way that favors the drafter. Doing things like referencing other parts of the contract to avoid clearly stating something the other side might take issue with.

Another aspect of legalese is to make reading difficult so that people give up and sign to make it go away. It doesn't stymie other lawyers and, when there's two in the room, they often state things clearly because they respect each other. They just don't respect the rubes.

Finally, a lot of it is found in contracts with a large power differential. I was just perusing the Wal-Mart online terms of service and they're basically disclaiming all responsibility for the company and making it hard to sue them. But most people want their item so they will accept the terms. Personally, I'm thinking twice about buying online now. In stores, the law applies.

cafard• 3 years ago

Sir Ernest Gowers, who did a mid-century revision of Fowler's Modern English Usage, wrote a book on his own, The Complete Plain Words, and remarked on ways that what in law appears to be nit-picking is necessary clarification. Gowers was a judge.

FrontierPsych• 3 years ago

Warren Buffett does deals with a handshake and one-page contracts on multi-billion dollar companies. Because he makes everything simple to close a deal.

Normally, companies spend a year to close. They quibble over tiny little things of no consequence - like a variance of .7% from one month's revenue in last March's revenue to April's revenue. Weeks of accountant's time, sales managers' time, all the owner's time.

I've screwed up deals because of lengthy contracts for small fry shit. That nobody in their right mind would accept.

I understand contracts more than most. I don't buy and sell nuclear power plants with that level of detail. My businesses are small - standard boilerplate, I know what all the clauses mean. It's not that difficult to understand basic business legal documents. Could one word or comma make a difference if I do it? Sure. As attorneys are always glad to point out. But that might be the case in 1 out of 100,000 contracts. I don't want to get a car like the President of the United States limo that costs $15 million - or whatever the fuck it costs - to keep him safe. I'm ok with a used 3 year old Toyota Camry that costs me $15,000. But am I as safe as the $15 Presidential limo? Do I give a fuck if I'm not as safe? That's a rhetorical question.

graymatters• 3 years ago

Same goes for many guild protected professions. Does the medical profession need all the Latin based terminology?

The Law Does Not Require Legalese

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