Legalese (1 Viewer)

[Rafy]

Professor sentences archaic legal waffle to be banished

By Rachel Browne
April 23, 2006

IF crimes against language were a punishable offence, most lawyers would be serving life sentences.

As it is, the only lengthy sentences legal profession members are serving are written on paper and delivered to increasingly frustrated clients.

Sydney University law professor Peter Butt has responded to this frustration with his new book, Modern Legal Drafting, which encourages simplicity in legal writing.

"Lawyers write in a very wordy and pompous style," he said.

"There is no justification for that nowadays. Lawyers should consider that the way they write is important for their clients. They can write in simple, modern English if they tried."

While big corporations such as insurance companies and financial institutions are embracing plain English in legal documents, many lawyers continue to cling to old school legalese.

At best, this means clients have to translate archaic language while, at worst, it forces them to wade through hundreds of words of waffle.

"Lawyers use humungous sentences," Professor Butt said. "I have seen one of 1299 words. I've seen judges use sentences of well over 100 words in their judgements.

"Even if the content is fairly straightforward, the sheer length of the sentence makes it impenetrable."

And if you think some legislation sounds like it was written in Shakespeare's time, that's probably because it was. The property laws still used in most Australian states were originally drafted in the 1600s.

"I've found words dating back to the 1660s, although it's more common to find words from the 1800s still being used in legal documents," Professor Butt said.

Having redrafted legal documents for groups such as the Business Council of Australia, the Board of Taxation and the Office of Film and Literature Classification, Professor Butt said the legal profession resisted change.

"Historically, lawyers were paid by length which is why they use four words where one will do," he said. "It says no more but justifies a larger fee, perhaps.

"Also, the role models that students follow are judges and judges, with all due respect, don't write very well. The other role models are academics and they're not good writers either."

Fear of professional negligence also makes lawyers averse to simplifying legislation.

While the profession has improved over the past 20 years, Professor Butt hopes his book, to be released in June, will encourage greater clarity.

- SMH

 

[rnitya_25]

that's gold....enjoyed reading that alot even though im not doing law, loved it in high school.

 

[gordo]

meanwhile everyone in commerce keep doing your Business process re-engineering and database management structuralisation coupled with continuous acquisition and life-cycle support to ensure enterprise resource planning integrates logistic support into global strategy competitive access provision to further integrate the exchange of product model data by streamlining macrosegmentation...

 

[SimonCrean]

meanwhile everyone in commerce keep doing your Business process re-engineering and database management structuralisation coupled with continuous acquisition and life-cycle support to ensure enterprise resource planning integrates logistic support into global strategy competitive access provision to further integrate the exchange of product model data by streamlining macrosegmentation...

What he said.

 

[MoonlightSonata]

Ah yes, Peter Butt. His books on Land Law are a delight to read for their fluidity and clarity.

And in defence of the judiciary, while some may fit those labels, our Chief Justice writes extremely clearly thankyou!

 

[melsc]

Most of the time I enjoy reading it though, I can't help it.
Although I do agree MS that Gleesons judgements are clear and concise
But then again it depends on what you like I suppose, when I am doing an assignment I prefer it well structured and short (like Mc Hughs I am reading at the moment) but if its just a reading I like a little pomp and legalese :rofl:

 

[wheredanton]

Gleeson CJ writes clearly. Kirby J writes clearly. Gummow J does not. Gibbs (despite being a bit of a fuddy duddy) also wrote well. And Mason J/CJ also writes well. Others are much of a muchness.

 

[hfis]

The other role models are academics and they're not good writers either.

So what, exactly, is this guy?

 

[santaslayer]

I won't critique the use of sophisticated legalese in the profession. If everyone knew what they were jibbering about, everyone would make an effort to represent themselves.


I do however, appreciate it if they didn't use it on the Law students. We have enough reading to do. I don't want to spend an infinite amount of hours trying to digest a simple idea just because the sentence is all jibberish.

There, best of both worlds.

 

[wheredanton]

I'm not exactly sure what Peter Butt is going on about. His text is well written and clear mainly because it is a text book. It is written for those in the transitional stage between lay person and person trained in 'artificial reasoning'.

Judges, perhaps, shouldn't be held back by a consideration of whether it will be totally clear to so and so in law school. To do so might be to 'dumb it down'.

Judges are writing at a certain level. While, at first, a judgment can seem obscure additional readings can reveal its depth. It's a bad idea to throw out legalese because some kid in law school starts to cry because he/she doesn't get the judgment because someone wrote a long sentence.

Legalese has developed over centuries and as a result had imbued certain words/phrases with important and significant meanings. To kill these legal expressions would be to inhibit judges as these words or phrases have legally specific meanings which are only apparent to those who have read law.

 

[MoonlightSonata]

Well, with respect, I wouldn't agree entirely with that. I don't think Butt is at all proposing to dumb down decisions - nor would the results be such should his suggestions be implemented. He is merely rallying for clarity with messy language. There is a marked difference between Gleeson and Gibbs' judgments when compared with the more prolix judges. Some are far better writers than others and the aspects of their decisions that pull them down are often poor structure, redundant verbosity and incredibly long sentences. These things can be swept away without affecting the quality of reasoning whatever. I daresay it would probably improve the standard of legal decision-making by providing a more articulate, accurate and accessible mechanism of interpretation. Clarity of thought would most likely be augmented, not inhibited.

He is also right in saying that many statutes (especially property law statutes) are still written in archaic language that could be redrafted to be much clearer.

I would also note that not all textbooks are created equal. Butt's books are far clearer than many other textbooks. Additionally, while it is not of essential importance as the application of the law by judges, learning law is still very important. Accordingly if his suggestions are beneficial in allowing students to gain a greater grasp of the law during their studies, I don't think that it is very fair or useful to write him off because it only assists 'mere' students.

I suspect Lord Denning would have much to say on this topic.

 

[wheredanton]

Well, with respect, I wouldn't agree entirely with that. I don't think Butt is at all proposing to dumb down decisions - nor would the results be such should his suggestions be implemented. He is merely rallying for clarity with messy language.

Whether a judgment is messy/hard to understand/etc often depends on the knowledge possessed by the reader. To someone new to the area of law a particular judgment may be obscure and written above their level. Another person, who is well versed in the area of law, might understand and appreciate why that judge structured his or her judgment in that way. While justice Gummow seems obscure at first his judgments, after a couple of readings, seem well expressed.

I think it is hard to explain some legal concepts without recourse to legalese that would be obscure to the lay person but understood by someone who has had legal training. To remove this legalese would 'dumb it down' IMO.

 

[NonCompusMentis]

There's got to be a skill in writing in a simple manner though.

 

[MoonlightSonata]

Whether a judgment is messy/hard to understand/etc often depends on the knowledge possessed by the reader.

At a superficial level and at the layperson level perhaps. But not at the level of a practicing lawyer in that field, which is where it matters.

To someone new to the area of law a particular judgment may be obscure and written above their level. Another person, who is well versed in the area of law, might understand and appreciate why that judge structured his or her judgment in that way. While justice Gummow seems obscure at first his judgments, after a couple of readings, seem well expressed.

And yet here we have an extremely knowledgeable lecturer in property law criticising the language of property law.

Let's assume that Gummow is a hard judge to understand. To say that Gummow seems written in a manner that is less clear than other judges because of the reader's background knowledge is to overlook the fact that other judges can manage to write much tighter decisions. Unless one wants to say that Gummow knows more than many other High Court judges who happen to write clear decisions. Even if you were to bite the bullet on that fact, it would be a very tenuous argument to stretch this notion to the rest of the more prolix judges. That is, to say that the majority of unclear or verbose decisions are written by judges with superior legal knowledge is obviously not an accurate picture of reality. There are plenty of potent legal minds who write with reasonable clarity.

Notwithstanding the knowledge of the reader, there is clearly a difference in the expression of a lot of judges. There is a patent disparity between them even on the same legal issues and the same matters. Writing obscurely or in a verbose manner does not lend much support to nuanced legal reasoning. Indeed, it may even obfuscate issues.

I think it is hard to explain some legal concepts without recourse to legalese that would be obscure to the lay person but understood by someone who has had legal training. To remove this legalese would 'dumb it down' IMO.

I agree that some level of legalese is necessary and it would be naive to assume we can operate in a legal system where the layperson can understand the law properly. The law is far too deep, complex and dynamic. We need special terms, we need the artificial reasoning of the common law, and we need the extensive content of many legal documents and statutes. However, Butt is not proposing to make taboo any form of legal terminology. He is simply calling for clearer drafting, removal of redundant and messy language, and clearer expression. These are positive goals that can certainly be sought without trampling on the necessary language the law requires to function, in my opinion.

Edit:

There's got to be a skill in writing in a simple manner though.

Perhaps a skill I do not quite have yet, since you seem to have expressed the gist of my whole post in one sentence

 

[NonCompusMentis]

I meant no disrespect.

 

[MoonlightSonata]

Meh, it goes without saying

 

[hfis]

Personally I like the complex legal language, as it makes me feel superior to everyone that cannot understand it. This is also why I support wigging and robing, and the archaic traditions of the superior courts.

Hey, it had to be said.

 

[santaslayer]

Personally I like the complex legal language, as it makes me feel superior to everyone that cannot understand it. This is also why I support wigging and robing, and the archaic traditions of the superior courts.

Hey, it had to be said.

This point should not be ignored.

 

[dissipate]

sometimes i think judges should take an examinable course in newspaper writing.. journalists have to write clearly and concisely. and we should impose word limits on their judgments too.

 

[gordo]

sometimes i think judges should take an examinable course in newspaper writing.. journalists have to write clearly and concisely. and we should impose word limits on their judgments too.

journalists write clear and concisely? what newspapers do you read?
the only clear journalist reports i have read were those in the 175th syd morning herald commemerative edition written 50+ years ago when journalists didn't obliterate the foundations of english grammar.