Lawyers, weapons of mass miscommunication

There is a magnet on my fridge which reads ‘please speak slowly, I am blond.’ And honestly when I work with lawyers I am constantly having ‘blond moments’. People say things to me or I read documents and I can absolutely not follow…don’t get me wrong, I can hear the words and I know what these words mean individually but strung together, it sounds like gibberish but it is actually legalese.
Legalese is “the language of lawyers that they would not otherwise use in ordinary communications but for the fact that they are lawyers”. It is the bane of lawyers, who want to ‘sound like lawyers’ when they speak and write. Unfortunately, legalese is not understandable by anyone else but lawyers often resulting in a communication block with clients.
I often wonder…aren’t lawyers supposed to make our lives easier? An all too frequent scenario involving lawyers and clients is a variation of this: a business manager has an issue with interpreting a section of the prohibition decree banning the importation of certain goods into the country. The way he reads it, the ban could be on ALL batteries or only on dry cell batteries, but because of poor drafting, the provision is ambiguous (again blame the lawyers) and it could be either. Being a conscientious Nigerian, he gets his lawyer, Lip E. Garrulous Esq. to advise him. All he wants is: “yes, it covers all batteries” or “no, it covers only dry cell batteries”. He gets a 6 page document with a summary saying: ‘in light of the above analysis which covers sections 18, 26 & 58 of the Customs Code and Schedule 5E of Regulation 16 of the Prohibited Items List of 2006, we deem it appropriate to inform you as a matter of grave importance that the relevant wording of the said sections can be interpreted to mean that either dry cell batteries or all batteries may be forbidden from importation through and into the shores of Nigeria.’ And that is the only part of the opinion that is intelligible.
When it comes to drafting documents, opinions and agreements, the rule seems to be the more complicated and unintelligible, the better. Try this: “In consideration of the Services to be provided hereunder and any other services ancillary thereto, the Company agrees to pay or cause to be paid to Party Y an amount equal to N[_____] per month.” This simply means that Party Y will receive x amount for the services listed below. And this is a good one.
Now take a crack at this: “NOW THEREFORE, IN CONSIDERATION OF, the premises, the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party of the second part does hereby sell, transfer, convey, set over, mortgage, hypothecate, devise and demise to the party of the first part, and does hereby grant to the party of the first part a valid prior security interest in the right, title and interest of the party of the second part in and to, the property described in Schedule A hereto attached and hereof expressly made a part”. Comprehend?

There are several reasons why lawyers write this way. One is that the study and practice of law is based on precedent and unfortunately, this is how lawyers in the sixteenth century used to write and we are still belabouring under this style of writing. The second is that since lawyers are trained to ‘catch’ everything, it is safer to throw in all the words (even when they mean the same thing) than to risk leaving something out. And the third – and this is just a theory, is that lawyers think that because law is one of the three ‘learned professions’ they have to make sure everyone else cannot understand a word they say, besides, it seems both judges and clients have come to expect such flowery incomprehensible prose.

However there is a lot of literature which suggests that plain English drafting is of more value to clients and eventually to lawyers. Clients entering into contracts to bind themselves should understand everything in the document – it is the key to appreciating what rights and obligations they have. Lawyers would spend less time plowing through puzzling provisions and their blood pressure would arguably be lower.

Ten words that lawyers really need to let go of immediately are: hereby, hereunder, whereof, witnesseth, hereinbefore, aforementioned, subsequent to, thereafter, whereas, and ALL Latin words or phrases. It would behoove lawyers to commence the application of unmistakable English and clients would do well to inaugurate and press for lawyers to do so. In other words: Lawyers should try using plain speaking English and clients should start insisting that lawyers do.

For those who want to improve their writing skills see Plain Language Legal Writing (Stephens); Plain English for Lawyers (Wydick); Plain English (Maher) or better still, lobby the Nigerian Bar Association to sponsor an annual seminar on legal drafting in plain English.
References:
“Some Thoughts on Good Legal Writing”, James J Clarke; Austin Lawyer (May 2008)

Lawyer Joke:
“What do you get if you cross the Godfather with a lawyer?
‘A man who makes you an offer you can’t understand.”

Published October 7