Movement Grows in Legal Industry to Promote Usage of Plain English

Article excerpt

By Maria Odum

N.Y. Times News Service

WASHINGTON _ Why does a Georgia state court subpoena warn: "Herein fail not on pain of $300"?

Why can't it simply say: "If you do not appear in court, you will be fined $300"?

This example illustrates why the average person finds reading legal documents a nightmarish journey into a foreign land without a translator.

Whether it appears in a judge's opinion, a state statute or a bill of sale, the obscure language known as legalese, or "legaldegook," can run the gamut from the abstract to the absurd, the hazy to the horrendous.

"A lot of poor legal writing is driven by fear _ fear of departing from the way things were done before," said Bryan Garner, a Dallas lawyer and author of a style book on legal writing and a dictionary of legal terms. "So we perpetuate preposterous ways of saying things."

There is a growing movement in the legal profession to promote the use of plain English, a movement whose advocates wish to strip legal language of jargon, archaisms and tortuous syntax and to replace them with clearer, simpler wording.

Movement supporters, including many legal organizations, have been conducting seminars, developing new forms and documents, preparing videotapes and writing books and articles in bar journals.

The effort, which is rooted in the consumeriented movement of the 1970s to simplify the language of contracts, regulations and insurance policies, has also spread to Canada, England, Australia and other countries.

Legal language that mixes English, Latin and French dates from conquests of England by Rome in 43 A.D. and by the Normans in 1066. Beyond that, Garner said, "Lawyers didn't want their documents written in English because that would mean anyone _ even unlearned people _ would be able to practice law."

It eventually became so complicated that complaints about it can be found in the writings of Thomas Jefferson and Abraham Lincoln.

Jefferson once complained, for example, about statutes that "from their verbosity, their endless tautologies, their involutions of case within case and parenthesis within parenthesis" are "rendered more perplexed and incomprehensible, not only to common readers, but to the lawyers themselves."

Some of the legal writing quirks found in form books, which are basically collections of model legal documents, can be traced to centuriesd mistakes.

For example, scholars and judges for centuries puzzled over the origin of the abbreviation "ss.," which commonly appears at the top of affidavits. "It is actually the ancient form of paragraph marks that crept into 18th century form books by mistake," said Garner, who teaches at Southern Methodist University's law school.

He also cited a mistake by a 19th century form book writer who read the term "witnesseth" as the imperative form of the verb rather than the third person singular.

"It has been misused for years as well," he said. Legal scholars say such language is perpetuated mainly because many lawyers catch the legalese bug in law school and cannot seem to shake it.

The scholars offer various reasons, some of them cynical or apologetic and others quite plausible, to explain why men and women of the law cling to writing that other people need a jackhammer to crack.

"It maintains the mysterious hocuscus of the law," said Joseph Kimble, who teaches legal writing at Thomas M. Cooley Law School in Lansing, Mich. "Also, there is an overwhelming influence of poor models. Lawyers read appellate court opinions day in and day out, most of which are not well written. And to draft documents, many lawyers often turn to form books, most of which are full of legalese."

To be sure, experts say, lawyers often impregnate their sentences with traditional, pompous wording, consciously echoing previous litigation in hopes of benefiting from a certain clause's interpretation. …