RECENT DEVELOPMENTS AND ADDITIONS TO LEGAL LANGUAGE
[last updated September 21, 2011]
The items below are new, others I recently discovered. I welcome any comments or other suggestions. You can email me at Peter.Tiersma@lls.edu.
Professor David Mellinkoff died the
last day of
this past century: December 31, 1999. He was educated at Stanford
University and Harvard Law School and was admitted to the California
1939. He told me once that his experiences in the army during
II, which brought him into contact with other languages, stirred his
language in general. After the war he worked for many years as a
in Beverly Hills. He quit his job and researched the language of
for several years, living mainly from savings. After his book, The
Language of the Law , was published in 1963, he accepted a position
U.C.L.A. law school, where he remained until his retirement.
did not live to see the 21st century, his work will have a lasting
those interested in English legal language. See also: Myrna
David Mellinkoff; Attorney Advocated Plain English. L.A. Times,
2000, at A17.
My book is almost entirely about legal English. For those interested in other legal languages, especially German and French, see Heikki S. Mattila, Comparative Legal Linguistics (Christopher Goddard, trans. 2006) and the references contained therein.
Chapter 1: Celts, Anglo-Saxons, and Danes
history of legal languages, see my chapter in the Oxford Handbook of
Language and Law (available in draft on SSRN).
legal documents from this period are now available on this site under legal texts.
p. 9--regarding Celtic poets "singing out" the law: see Robin Chapman Stacey, Dark Speech: Performance of Law in Early Ireland (Philadelphia: University of Pennsylvania Press, 2008).
Singing law was apparently also done in ancient Greece before the advent of writing, as a means of transmitting the law to an illiterate public. Rosalind Thomas, Written in Stone?: Liberty, Equality, Orality, and the Codification of Law, in Greek Law in its Political Setting: Justifications not Justice 14 (L. Foxhall and A.D.E. Lewis eds.) (Oxford, 1996).
Chapter 2: The Norman Conquest and the Rise of French
See legal texts on
for additional Law French documents
The continuing use of Latin (p. 25)
For additional information on use of
the legal system, see Peter R. Macleod, Note, Latin in Legal
Inquiry Into the Use of Latin in the Modern Legal World, 39 B.C. L.
235 (1997). This is a study of the use of Latin by three courts
United States Supreme Court and the high courts of California and
Massachusetts). It found that use of Latin has actually been increasing
the past half century. The research was limited to 15 common
phrases, however, so it may not give an accurate picture of the overall
Latin. But it does document a clear increase in the frequency of
expressions inter alia (among other things), vel non
(or not), sub
silentio (in silence), sua sponte (of its own accord), and ratio
decidendi (reason for decision). What is interesting
these results is that the use of Latin for technical terminology seems
stable or declining, as the concepts to which the Latin phrases refer
obsolete or are replaced by English. The Latin phrases that are
in popularity are either nontechnical (such as inter alia) or
acceptable English equivalents (such as “holding” for ratio
decidendi). One reason for the persistence of Latin thus seems to
it lends an air of erudition to one’s writing.
Also worth reading is Isabel Balteiro & Miguel Angel Campos-Pardillos, A comparative study of Latinisms in court opinions in the United States and Spain, 17 Int'l J. Speech, Language, & Law 95-118 (2010). They find that although Latin expressions continue to be used by both U.S. and Spanish courts, there is not a lot of overlap in the terms used.
Law French (p.
See also J.H. Baker, The Three
the Common Law, 43 McGill L.J. 5 (1998).
Prof. Baker's article is a nice overview of the role of French in the English legal system. He points out that by 1179, the English and French people in England were so mixed it was hard to tell them apart. At the same time, there are no French texts from the courts from before the 1250s, a century after the distinction between Normans and English disappeared. He concludes: "It is now thought that the currency of French in courtly circles in early thirteenth-century England was not a relic of conquest but was rather due to its slightly more recent international recognition as the language of learning and more recent international recognition as the language of learning and diplomacy." Id. at 16-17.
Moreover, this French was not Norman French, but a hybrid dialect with Picard and Angevin influence. Id. at 17.
Finally, he mentions that oral French was used for formal pleading in court until 1731, though unintelligibly, and was used for moots in the Inner Temple until 1778. Id. at 20.
Incidentally, another legal language in England was Hebrew. For details, see M.T. Chanchy, From Memory to Written Record, at 201-202.
Trilingualism and Code-Switching (p. 33)
Some good examples of how the three languages of the law operated in pratice can be found in M.T. Chanchy, From Memory to Written Record: England 1066-1307, at pp. 206-207. Clanchy points out that a message by the king to a sheriff in the 13th century might have been spoken originally in French, written down in Latin, and later read to the sheriff in English. Likewise, during a trial the justice's questions were presented to the jurors in either French or Latin, the jurors probably answered in English, and their verdicts were written down by the court clerk in Latin.
Chapter 3: The Resurgence of English
The Increasing Importance of Writing and Printing (36)
For more on this topic, see my book, Parchment, Paper, Pixels: Law and the
Technologies of Communication (20)
Prof. Richard Wydick (author of Plain English for Lawyers) presents a nice example of a legal event that even today is completely oral: the wedding ceremony. Although there is typically a written record (a certificate signed by the witnesses and the officiating clergyman or government official), what matters is what is said at the ceremony itself. See Richard C. Wydick, Review Essay , 7 Scribes 165, 167 (1998-2000) (reviewing this book).
Legal English Throughout the World (43)
p. 43--The Mayflower Compact was signed on the ship while the Pilgrims were en route to the new world, not—as the text suggests--after they had arrived
For a discussion of how protestants, including Puritan groups, desired a plain language code in English around the time of the Commonwealth (interregnum) in England, see Assaf Likhovski, Protestantism and the Rationalization of English Law: A Variation on a Theme by Weber, 33 Law & Soc'y Rev. 365 (1999). The article also has a useful bibliography on this issue.
p. 46: for more on the influence of
on American law, see Eric B. Kunkel, THE SPANISH LAW OF WATERS IN THE
STATES: FROM ALFONSO THE WISE TO THE PRESENT DAY, 32 McGeorge L. Rev.
For a discussion of the use of Chinese and English in courts of Hong Kong, see Kwai Hang Ng, “If I Lie, I Tell You, May Heaven and Earth Destroy Me.” Language and Legal Consciousness in Hong Kong Bilingual Common Law, 43 Law & Soc’y Rev. 369 (2009). See also his book, The Common Law in Two Voices: Language, Law, and the Post-Colonial Dilemma in Hong Kong. Stanford University Press, 2009.
Chapter 4: Talking Like a Lawyer
pronunciation and spelling
p. 52--Some people question my comment that judgment is a marker of legal language. See, for example, Edward Finegan's review of Legal Language in the Journal of Forensic Linguistics 7: 124 (2000), who states that "dictionaries rank both forms as acceptable." I completely agree, and mention in the text that spelling with or without the middle e is generally acceptable. What is interesting is that lawyers are specifically told in law school that only the spelling without e is acceptable in legal usage. The L.A. Times reported in the local news that it had received a lettter from a lawyer regarding an adverisement for the television show Judge Judy that mentioned "Judgement Day." The word was misspelled, according to the lawyer, who commented: "The first thing I remember being told in law school was that the word 'judgment' has only one 'e'." Steve Harvy, Only in L.A., L.A. Times, August 26, 2000, at B4.
Dutch legal language also has words that lawyers pronounce differently from the rest of the population, especially those ending with the French –oir, as in trattoir, where the –oir it is normally pronounced "war". Dutch lawyers pronounce such legal words as "oor", as in requisitoir. See G.C.J.J. van den Bergh, Recht en Taal: Preadvies 46 (1979). Dutch legal language is also characterized by overuse of passive constructions and nominal forms. Id. at 49. Legal English is thus not unique in this sense.
Prof. Don Brown (emeritus professor of anthropology, Univ. of California, Santa Barbara) informs me that among anthropologists, the word descendant was and perhaps still is pronounced to rhyme with ant, just as lawyers do with defendant. His suggested explanation is that many early experts on kinship at American universities were trained as lawyers.
I have also been told that the
Latin using English vowels is not just common among the English legal
profession traditionally, but also the Church of England. Can
Lengthy and complex sentences (p. 55)
A great example of how lawyers try to
anticipate future contingencies and in the process make documents ever
is contained in Shirley L. Kovar, Updating
the No-Contest Clause, 5
Trusts and Estates Q. 24 (Fall 1999).
The author discusses some of the problems with existing no-contest clauses. She takes a seven-line no-contest clause and recommends replacing it with one that is 48 lines long in order to deal with possible (but generally fairly remote) things that might happen.
The obsession with covering all the bases and anticipating ever remote contingencies seems to be far more prevalent in Anglo-American law than in the civil law of Europe (based largely on Roman and Napoleonic codes). See Claire A. Hill and Christopher King, How Do German Contracts Do As Much with Fewer Words?, 79 Chi.-Kent L. Rev. 889 (2004).
p.56: For an update on the studies by
Gustafsson and Hiltunen, see Risto Hiltunen, "Some Syntactic Properties
English Law Language": Twenty-Five Years after Gustafsson (1975), in English
in Zigs and Zags (R. Hiltunen et al. eds. 2001).
Gustafsson published one of the first studies of the syntax of legal English when she analyzed the British Courts Act of 1971. Hiltunen compares this with samples of five acts issued in 2000. The average sentence has 45.04 words, about 10 less than in Gustafsson's study. Because the hierarchical structure of sentences is spelled out more clearly in modern legislation, longer sentences are not necessarily a significant problem. There is also a reduction in sentence complexity, with more simple sentences, for instance. Finally, there are far fewer medial clauses. In the modern acts, most clauses are right-branching and just over 10% are medial, while in Gustafsson's data over 26% of the clauses were medial.
p. 56: French judgments being a single sentence: this is still largely true, but see Heikki S. Mattila, Comparative Legal Linguistics 85 (Christopher Goddard, trans. 2006).
p. 56: According to Stephen Harris, a patent attorney in Tokyo, what is called the "specification" in a patent application should be written in normal English, preferably with short and clear sentences. The "claims" of an application, on the other hand, are written in sentence fragments, many of which are often quite long. It remains the case that the claim must be stated in a single sentence with only a period at the end (although there can be intervening punctuation, including semi-colons. See the most recent edition of Herbert F. Schwartz, Patent Law and Practice 15 (4th ed. 2003) ("The claims can be punctuated and laid out in whatever manner the drafter desires, except that there can be only period and that must come at the end of the sentence.")
Conjoined phrases and lists of words
p. 64--Give, devise and
how lawyers do not, in practice, distinguish these words in any
consider Estate of Lindner, 149 Cal. Rptr. 331 (Cal. Ct. App.
held that although technical words in wills are to be understood in
technical sense, especially if a will is drafted by a lawyer, the word bequest
(which many lawyers argue is carefully limited to personal property)
in this case to include a devise of real estate.
Unusual Sentence Structure
p. 65--six lines from bottom--typo--"usual sentence structures" should be "unusual" (thanks to Ed Finegan's review in the Journal of Forensic Linguistics 7: 126 (2000).)
Consider the placement of by him in this recent Supreme Court order:
The application for stay of execution of the sentence of death of Alan Willett presented to Justice Thomas and by him referred to the Court is denied.
Committee v. Arkansas, 68 U.S.L.W. 3152 (Sept. 8, 1999))
Another example of unusual sentence structure is often found in wills: "in this my last will and testament" or "this my will." If there were a comma after this, it might be marginally grammatical. But I have never seen a comma in this position.
Negation (p. 66)
On negation, see Defendant Sick over
Coughing Attack, L.A. Times, April 17, 1999, at A-6 (describing how the
foreman in a case in Cardiff, Wales, was reading the verdict of not
another juror coughed during the “not”--the judge sentenced the
defendant to two years in prison. He was released after a juror asked
why the defendant was going to prison if he was not guilty)
p. 68: (use of "we" and third person
by judges): Justice Stephen Breyer of the United States Supreme Court
used the pronoun "I" in an opinion (stating that "I will
call" a certain decision "case two".) South Central Bell
Telephone Co. v. Alabama, 119 S. Ct. 1180, 1185 (1999). This
caused a "legal frenzy," according to one reporter. Tony Mauro,
Justice's Supreme Use of "I" Sparks a Legal Frenzy , USA
Today, Friday, April 2, 1999, at 11A (also available at 1999 WL
According to Vanderbilt University law professor Barry Friedman, "The word 'I' leaped out at me. It's like the Wizard of Oz stepping out from behind the curtain."
Georgetown University law professor Mark Tushnet also noticed the first person pronoun and sent a note to Justice Breyer complaining that his usage was "nonstandard."
I owe this information to Pearl Goldman, Review of Peter M. Tiersma, Legal Language, 24 Legal Studies Forum 721 (2000).
NOTE: Justice Breyer was
apparently aware of the criticism--the final version of the case as
printed in the U.S. Reports uses "we".
While it may be the norm for judges to refer to themselves as the court , this can sometimes lead to absurd results when a judge is speaking in her personal capacity, as is sometimes the case. Consider one of the opinions in the case by Paula Jones accusing President Clinton of sexually harassing her. The judge, Susan Webber Wright, dropped a footnote in which she starts out by referring to herself as the court and then as the undersigned but soon shifts to I and me when the third person begins to sound silly:
The Court informed the parties that a member of the House Managers who prosecuted the impeachment trial against the President contacted the undersigned in early January of this year to let me know that he was considering calling me as a witness for the impeachment trial. I objected and was never subpoenaed or otherwise asked to testify. Later, a representative of the House Managers requested and, with my permission, received an affidavit concerning the President's deposition from my law clerk, Barry W. Ward, who attended the President's deposition. The Court allowed the parties an opportunity to request that I recuse from deciding the remaining issues in this case because of the House Manager's contact with me or because of Mr. Ward's affidavit, but none did so.
Jones v. Clinton, 36 F. Supp. 2d 1118, 1124 n.11 (E.D. Arkansas 1999).
Use of "the court" to refer to the judge also can lead to confusion. In many American jurisdictions, a judge can hold someone in contempt for disrupting a hearing or obstructing justice, without giving the person due process, but only if the conduct occurred "in the presence of the court." Some jurisdictions have interpreted this phrase very broadly, as covering almost any activity in the courthouse, and thus apparently viewing "the court" as the entire institution. Other jurisdictions interpret the phrase to mean "in the presence of the judge," requiring that the judge actually see or hear the conduct in question.
Chapter 5: The Quest for Precision
p. 73: the Masculine shall include the Feminine
An interesting recent case where this principle was not applied was reported in the Los Angeles Times (Sara Lin, Only Men Can Be Flashers, Judge Says, L.A. Times, Oct. 21, 2006, at B6). According to Judge Robert Armstrong of Riverside County, California, a penal code provision making it illegal for a person to "expose his person" to someone else did not apply to a woman who exposed her person to a young man who was annoying her by playing basketball outside her house. What's interesting is that section 7 of the Calif. Penal Code specifically states that "words used in the masculine gender include the feminine and the neuter." Did the prosecutors not know about this provision and fail to mention it to the judge? The news report also mentions that the judge was persuaded by the fact that in other parts of the code, the phrase "he or she" was used, creating an implication that the statute on indecent exposure was meant to apply only to men. This is a common type of legal reasoning, but the more likely explanation is that more recent statutes use "he or she" and the older ones (perhaps including indecent exposure) use only "he" and expect users to apply the maxim that the masculine includes the feminine. I would expect an appeal!
Blackstone, at 1 Commentaries 88 ( 3) (1978 Garland ed), mentioned that a statute provided that anyone convicted of stealing of horses should not have benefit of clergy; courts refused to apply it to someone who stole just one horse. This may help explain maxims such as those stating that the singular includes the plural and vice versa.
p. 74: Passives and Nominalizations
For a discussion of how the Supreme Court uses devices like the passive voice and nominalizations in its opinions, see Laura E. Little, Hiding With Words: Obfuscation, Avoidance, And Federal Jurisdiction Opinions, 46 UCLA L. Rev. 75 (1998).
p. 81: the Tension between Flexibility and Precision
Regarding the interpretation of lists of words, consider the constitutional language for impeachment (treason, bribery, and other high crimes and misdemeanors). Arguably, that the catch-all at the end (other high crimes and misdemeanors) cannot be understood without looking at the items preceding it, both of which relate to serious crimes against democracy and the functioning of government.
Chapter 6: The Legal Lexicon
p. 86--ye olde wine shoppe is probably not so well described as "archaic morphology", but rather just an antiquated phrase. Later on the page I describe a different ye as the plural of you. More accurate would be to call it the plural of thou. Thanks to Krishna Ramaraju for pointing this out.
p. 94-5 (vagueness of the term herein): A solution to this problem is to define the term herein, as well as hereunder, to refer only "to this Agreement as a whole and not to any individual article, section, subsection or other part of this Agreement." See Model Loan Agreement, from a text called "Documents for International Business and Economics."
p. 97—lawyers justifying their
monopoly. Another believer in the conspiracy theory:
Steven Stark, Why Lawyers Can't Write, 97 Harv. L. Rev. 1389, 1389 (1984) ("One need not be a Marxist to understand that jargon helps professionals to convince the world of their occupational importance, which leads to payment for service.")
p. 97--some other examples of creative new legal language are those dealing with new ways of forming agreements or licenses relating to software and other computer-related activities. Consider the terms
See Specht v.
Communications Co., 105 F. Supp. 2d 585 (S.D.N.Y. 2001).
Consider also all the recent coinage of terms using the prefix e-, as in e-commerce, e-business, and so forth. There are a number that are fairly distinctly legal, including e-contract, e-signature, and e-postmark. No doubt other such coinages are not far behind. Will we soon have e-wills and an e-constitution???
p. 98--for more on words formed with the addition of -ee, see Chris Barker, Episodic -ee in English: A Thematic Role Constraint on New Word Formation, 74 Language 695 (1998). The process may be more common in ordinary English than is suggested in the text.
Formal and ritualistic language
p. 100--on the usefulness of formal language as signaling that an event is important, see discussion below on plain language class settlement notices.
p. 103--lawyerly obsession with the word advise to mean "said": When Kenneth Starr's lawyers made notes of their interviews with Monica Lewinsky (regarding her relationship with President Clinton), they repeatedly noted that LEWINSKY advised this or that, meaning said. For example: "LEWINSKY advised that she includes kissing when she uses the term 'sexual contact.' ... LEWINSKY advised that on January 7, 1996, CLINTON called LEWINSKY for the first time at home and at her office." Phil Kuntz (ed.), The Starr Report: The Evidence 37 (1998).
Jargon, Argot, and Technical Terms (p. 106)
A good example of the difference
jargon and technical terms, as well as the difficulty in drawing clear
between these categories, is the set of words that includes bankrupt,
insolvent, and judgment-proof . Although not always
carefully, bankrupt means that you have been declared unable to
debts by a bankruptcy court, and is thus clearly a technical
word judgment-proof means that even if I win a judgment against
will almost certainly not be able it; this is best categorized as legal
rather than a term of art. Insolvent falls somewhere in
referring to someone who cannot pay her debts as they become due, or
whose debts are greater than her assets.
Other exampes of legal jargon are good law or bad law, which in the legal arena means that a precedent has never been overruled (in the case of good law) or that it has been disapproved (another example of jargon), in which case it is bad law. Another nice illustration of jargon is judge-shopping and its close cousin, forum-shopping.
See also Glenn Edward Murray and Gary Muldoon, Criminal Law Slanguage of New York (Gould Publications, 2004). Some examples of criminal law jargon from their book: fruit of poisonous tree doctrine; imperfect self-defense; knock and announce rule; no-knock search; ostrich instruction; roving wiretap; sneak and peak warrant.
On p. 107 I mention that an interesting type of jargon is naming a rule or doctrine for the case that established it. A related phenomenon is to name laws for a well-known victim. Examples from New York (see Murray and Muldoon) include Jenna's Law, Joan's law, Kendra's Law, and Kieran's law. There are also a few laws named for the perpetrator. One example is "Son of Sam laws," which are named for a criminal known as the "Son of Sam."
Relationships among Words (p. 110)
p. 111--Some other examples of legal
rape: it includes things like having sex with a woman who is intoxicated or under the influence of a controlled substance when the man knows she is intoxicated. This is probably broader than the ordinary meaning of the word, although it is highly likely that men and women disagree on its exact meaning.
insanity: the legal definition in most jurisdictions is far more specific than its ordinary or clinical meaning. Under California Penal Code § 25, the defendant must show that she could
not understand the nature and quality of his or her act and also that she could not distinguish right from wrong. Jury instructions sometimes specifically mark this as "legal" insanity.
mayhem: refers not to a general state of anarchy, but to severing off or hacking off part of a person's body.
publish: the legal meaning is often simply to "make public." Thus, a forgery statute (Calif. Pen. Code § 476) makes it a crime to "publish...a fictitious...instrument in writing..." You would think that it was illegal to write a novel!
Chapter 7: Interpretation and Meaning
For further elaboration on the themes in this chapter, see my article entitled A Message in a Bottle: Text, Autonomy, and Statutory Interpretation, 76 Tulane L. Rev. 431 (2001). I also recommend Lawrence Solan's book, The Language of Statutes: Laws and Their Interpretation (2010). Some interesting examples of how the form of a verb can influence meaning, see Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1 (2008) .
p. 117--declaratory definitions. An example of where a declaratory definition can limit or reduce ambiguity is the problem of herein , described in my book on p. 94-5. A solution to this problem is to define the term herein, as well as hereunder to refer only "to this Agreement as a whole and not to any individual article, section, subsection or other part of this Agreement." See Model Loan Agreement, from a text called "Documents for International Business and Economics."
p. 119--definition of document. An even longer definition of this term (580 words!) is contained in the "rider" attached to a subpoena sent to President Clinton to testify before the grand jury. Almost all of the 580 words are examples of what is included in the term, including letters of credit, daytimers, forecasts, retainer records, appraisals, brochures, title policies, documents relating to filings under the Uniform Commercial Code and/or its equivalent, signature cards, real estate contracts, savings account transcripts, deposit slips, computer tapes, computerized records stored on fixed hard disks or WORM disks, microfiche, and voicemail recordings, to mention just a few. Phil Kuntz (ed.), The Starr Report: The Evidence 501-3 (1998).
p. 122—if you think that the Marx Brothers were unfairly spoofing legal language (“the party of the first part shall be known as the party of the first part”), have a look at the British Brighton Corporation Act of 1931. It solemnly declares that “The First Schedule” “the Second Schedule,” “the Third Schedule” (etc.) mean respectively the First Second Third (etc.) Schedules to this Act.” Sir Robert Megarry, A New Miscellany at Law 183 (Bryan A. Garner ed. 2005), quoting 21 & 22 Geo. 5, c. cix, 1931, s. 6(54).
Chapter 8: Variation
Legal Dialects (p. 133)
An important variety or dialect of legal English that has been developing in the past years is sometimes called International English. The English language is increasingly being used for drafting international agreements, even when neither of the parties are native English speakers or in English-language jurisdictions. Although I'm not aware of any formal study of this type of International Legal English (any grad students looking for a dissertation topic??), it appears to be somewhat of an amalgamation of different dialects of legal English, or in some cases a direct translation from concepts common in civil law jurisdictions.
Another interesting issue is whether use of an English-language legal term in an international agreement suggests that it should be interpreted in the same way that the term would be construed by an English or American court, even if English or American law does not apply to the contract or other document. Some German courts have apparently held that the answer is yes, and at least one German court has held that the use of an English legal term not only incorporated the English understanding of the term, but also the "objective" method of interpretation used by English courts when interpreting contracts. For comments and a critique, see Volker Triebel & Stephan Balthasar, Auslegung englischer Vertragstexte unter deutschem Vertragsstatut--Fallstricke des Art. 31 1 Nr. 1 EGBGB, 31 Neue Juristische Wochenschrift 2188 (2004).
p. 137-39: I recently heard a California judge remark that a court of appeals flipped a case (i.e., reversed it).
Though it is relatively rare, slang terms sometimes end up being legal or quasi-legal language. California currently has a statute (Pen. Code sec. 243.9) entitled "battery by gassing." Gassing seems to derive from prison slang and refers to the practice of prisoners throwing excrement and bodily fluids at guards.
Some additional slang terminology from criminal law can be found in Glenn Edward Murray and Gary Muldoon, Criminal Law Slanguage of New York (Gould Publications, 2004). Examples include Baby DWI (lower permissible alcohol limits for teenage drivers); blood sucker order (an order authorizing an unauthorized blood test--why not call it a vampire order??); to bump (to challenge and remove a prospective juror during voir dire); horseshedding (instructing a client or witness how to testify, apparently deriving from a novel by James Fenimore Cooper).
Variation and Genre
p. 139-140: Poetry in judicial
See Bad Times Over a Judges's Rhymes, L.A. Times,
2002, at A50 (reporting that an appellate court in Pennsylvania had
state Supreme Court (i.e, trial court) judge for issuing an opinion in
The underlying lawsuit involved a claim by a disappointed fiancee that
her husband-to-be had given her did not contain a diamond, as he had
A groom must expect matrimonial pandemonium
When his spouse finds he's given hera cubic zirconium
Instead of a diamond in her engagement band
The one he said was worth twenty-one grand
The appellate court noted that this "reflects poorly on the Supreme Court of Pennsylvania" because "[n]o matter addressed by this court is frivolous".
See also Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions, 12 Widener L.J. 597 (2003).
For another opinion in rhyme, also from Pennsylvania, see Mackensworth v. American Trading Transportation Co., 367 F. Supp. 373 (E.D. Pa. 1973). Notice that this is a federal court, where judges have lifetime tenure, so they do not have to worry as much about what people think.
An interesting article on poetry and rhyme is Rhyme and Reason by Canadian lawyer John Kleefeld. You can click on the link to read the article in pdf format (it appears here by permission of the author) or find it at 62 The Advocate 351 (May 2004).
See also Dennis Kurzon, Legal Language: Varieties, Genres, Registers, Discourses, 7 Int'l J. Applied Linguistics 119 (1997).
Chapter 9: Pleadings
Chapter 10: Testimony and Truth
Mark Adler has pointed out to me that
even the question, "Did you eat broccoli last night" can be leading, if
the point is put an idea in a witness's head. The proper form on
direct examination would be "What did you eat last night?"
The Language of Questioning
p. 169-70: For more on the informal language of sidebar conferences, as well as a theory about the purpose of such language, see Philip Gaines, Negotiating Power at the Bench: Informal Talk in Sidebar Sessions, 9 Forensic Linguistics 213 (2002).
Implications of the Questioning Process
p. 172--Another possible example of coaching of witnesses is the statements or questions posed by President Clinton to his secretary, Betty Curry. All were tag questions of the sort "Monica and I were never alone, right?" During his testimony before the grand jury, Clinton claimed that these were real questions to refresh his memory. Starr alleged that they were statements made to influence the testimony of Curry. Obviously, intonation is everything here. See Phil Kuntz (ed.), The Starr Report: The Evidence 372 (1998).
A analysis by Susan Ehrlich of the
a rape trial in Canada reveals that some of the strategies used by
obscure the actor through passive constructions, nominalizations, and
are also used by criminal defendants for very similar reasons.
young man accused and later convicted of "date rape" used strategies
such as the following in an attempt to reduce his culpability:
**representing them as co-agents:
"we started kissing" (p. 45)
** using agentless passives:
"all of our clothes at one point were taken off..." (p. 47)
**using unaccusatives (intransitive verbs that take nonagents or noncausers as grammatical subjects, as in "the glass broke"):
"the intimacy began"
"it just kept progressing" (pp. 50-51)
In contrast, the complainants used expressions that attributed agency to the man:
"he took my shirt off" (p. 42).
See Susan Ehrlich, Representing Rape: Language and Sexual Consent (2001)
For more on the O.J. Simpson case
linguistic perspective, see Janet Cotterill, Language and Power in
Linguistic Analysis of the O.J. Simpson Trial (Houndmills: Palgrave
Chapter 11: Completing the Story
Closing Arguments (181)
For more on the African-American preaching style, see John J. Gumperz, Discourse Strategies 187-203 (1992).
Instructing the Jury (193)
Click here for recent developments on
For developments in Texas, see Wayne
Schiess, The Texas Pattern Jury
Charges Plain-Language Project: The Writing Consultant's View,
60 Clarity 23 (2008).
"directions" in England
Compare the stiff, impersonal, and highly formal language of the California instruction on reasonable doubt (pp. 194-5) with the way that English judges are advised to instruct (they would say "direct") juries on the burden of proof:
A. Burden of proof
In this case the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.
B. Standard of proof
How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.
Source: CROWN COURT BENCH BOOK: SPECIMEN DIRECTIONS (available at http://www.jsboard.co.uk/criminal_law/index.htm)
For additional discussion of the California vs English jury instructions, see Chris Heffer, "If You Were Standing in Marks and Spencers": Narrativization and Comprehension in the English Summing Up, in Language in the Legal Process 228 (Janet Cotterill ed. 2002).
Chapter 12: What Makes Legal Language Difficult to Understand?
p. 203--I suggest here that most
people are aware
of the meaning of certain basic legal words, like defendant.
perhaps I'm being overly optimistic. The following is supposedly
colloquy that took place in a real trial and that is being circulated
JUDGE: The charge here is theft of frozen chickens. Are you the defendant?
DEFENDANT: No, sir, I'm the guy who stole the chickens.
Thanks to Robert Patterson, esq., of Santa Barbara.
p. 205: With reference to the problem that especially criminal statutes have multiple audiences, see the article by Robinson et al., described below, for an innovative solution.
Multiple negation (207)
Laurence R. Horn, Duplex Negatio Affirmat...: The Economy of Double Negation, 27 Chicago Linguistic Soc'y 80 (Lise M. Dobrin et al. eds., 1991) (Triple negatives are very hard to understand; people lose track of how many negatives there are.)
William B. Hodgson, Errors in the Use of English 219 (1885) (noting that "Piled up negatives prove easy stumbling-blocks.")
Ry. Co. v. Finch, 59 So. 619 (Ala. 1912) (jury instruction reversed and
trial granted because of triple negative: "unless the jurors believed
the evidence that the engineer did not discover the peril of the woman
to avoid injury...")
Muldoon has sent me the following example from Groucho Marx (You Bet
Your Life): "I can't say I disagree with you."
Internal Legal Language (p. 211)
p. 212: My prediction that "crimes against nature" will come to be understood as relating to environmental crimes came at least partially true in 2002 when the Santa Barbara News-Press published an editorial under this title. The subject? That California prosecuter should crack down harder on polluters and poachers. Santa Barbara News-Press, January 15, 2002, at A10.
Rules of Procedure
During the past years, the Federal Rules of Civil Procedure have been rewritten in light of plain language principles. They will be presented to the U.S. Supreme Court for approval in 2006. The Court will then forward them to Congress, and if Congress has no objection, they will go into force in 2007. It would probably be an exaggeration to call them "plain" English, but they have been greatly improved in terms of readability and use more ordinary language than in the past. Presentation by Joseph Kimble at Law and Society Meeting, Baltimore, July, 2006.
p. 213: As to improvements
being made in
statutory language, I have noticed that California's statutory drafters
for the past few years been systematically updating the language of
statutes that need to be revised for other reasons.
For instance, Civil Code section 1780 was amended in 1988. Some of the linguistic changes included deleting such action and substituting "an action under subdivision (a) or (b)," which is both less archaic (by avoiding "such") and more precise. Likewise, his was replaced by his or her. Stats 1988 ch. 823 sec. 3; ch. 1343 sec. 2. Later amendments changed the relative pronoun which to that (a more dubious change, in my opinion) and such person to that person. These are modest changes, however, and nothing like what has been happening in some places like Australia.
has been at the forefront of writing statutes in
plainer English. See Hilary Penfold, When Words Aren’t Enough:
Graphics and Other Innovations in Legislative Drafting, in Marilyn
(ed.), Language and the Law: Proceedings of a Conference 307
(2003). Penfold discusses use of flow charts and graphics
legislation in Australia--see examples in the paper.
Also, some Australian legislation uses the pronoun you!!! The statutes also contain many tables, some of which actually contain operative provisions. Penfold mentions that a drawback to graphics is that there are no verbs. She has several exhibits with illustrations, including Exhibit 2 from the Tax Law Improvement Act, which contains a section entitled “How to Work Out Your Cost” and is clearly aimed at a lay audience.
There has also been much activity in New Zealand on the subject of improving the language of statutes. See volune 52 of the journal Clarity (Nov. 2004).
For an interesting article on plain English and the criminal law, see Paul H. Robinson, Peter D. Greene, and Natasha B. Goldstein, Making Criminal Codes Functional: A Code of Conduct and a Code of Adjudication , 86 J. Crim. L. & Criminology 304 (1996). The authors note that most criminal statutes have a dual audience: members of the public and adjudicators. They suggest that adjudicators can tolerate the complexity that is inherent in most current criminal codes, but that members of the public have a right to a criminal code that they can understand. In essence, there ought to be two criminal codes, one for the public and one for judges. The authors then proceed to offer a draft code of conduct that explains to the public, in plain English, what they can and cannot do, as well as a draft code of adjudication in legalese for judges and other professionals.
I also explore the issue in my article entitled A Message in a Bottle: Text, Autonomy, and Statutory Interpretation, 76 Tulane L. Rev. 431 (2001).
p. 214-215: Mami Okawara has
description of legal Japanese. See Mami Hiraike Okawara, Legal
Japanese Viewed Through Unfair Competition Prevention Law, in
the Law (J. Gibbons et al. eds. 2004) (Hyderabad: Orient
Okawara discusses the history of legal Japanese, which could be said to have begun with the first written constitution, promulgated in 604 and written in Chinese characters. A legal code, which imitated the content of Chinese codes, was promulgated in 689. Some laws were being written in hiragana by the eighteenth century, but after the Meiji restoration, laws were again written in Chinese characters, according to the imperial custom. By 1926, however, Prime Minister Wakatsuki instructed his cabinet to improve the language of legal forms by the use of ordinary Japanese. Also important was that the post-war constitution was drafted in ordinary Japanese style. Several Japanese codes are now in ordinary Japanese, although a couple are still in the classical style.
Okawara then analyzes Japan's new Unfair Competition Protection Law, adopted in 1995. She finds it much improved over previous codes, but there is still some unusual legal grammar, repetition of words to increase precision (in the same way that American lawyers repeat nouns and avoid pronouns), confusing technical vocabulary, and distinctive legal pronunciation of certain words.
p. 217: For a good manual on drafting contracts in a commercial context, see Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements (2001).
p. 217: Judicial style.
See Laura E. Little, Hiding With Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA L. Rev. 75 (1998), who conducted a study showing that between 1965 and 1995, the U.S. Supreme Court's usage of devices like passive voice and nominalizations decreased. Little suggests that a reason may be that judges are more confident and thus have less reason to hide or minimize their agency. Id. at 139. It also seems possible that the justices (or, more likely, their law clerks) have been taught in legal writing classes to write more clearly.
p. 218: Lord Denning, quoted on this page, died recently at the age of 100. N.O. Stockmeyer, Jr., Beloved are the Storytellers , 18 Thomas M. Cooley Law Review 1 (2001).
Public: Shyster OK--If He's On Your Side, 67 American Bar Ass'n J. 695 (1981). (Interviews with focus groups revealed that what people sought in a lawyer was someone "who would talk to them, without condescension, in plain English and perfectly honestly.")
Directive Orders Clear Language, Santa Barbara News-Press, June 2, 1998, at A6 (reporting that President Clinton signed a directive requiring bureaucrats to use plain English for all new federal documents, other than regulations, that explain how to get a benefit or service or how to comply with an agency requirement)
United States v. Standard Oil Co.,
384 U.S. 236
(1966) (Harlan, J., dissenting)
"[I]n a civilized state the least that can be expected from government is that it expresses its rules in language that all can reasonably be expected to understand. Moreover, this requirement of clear expression is essential in a practical sense to confine the discretion of prosecuting authorities, particularly important under a statute . . . which imposes criminal penalties with a minimal, if any, scienter requirement."
Marlene Cimons, Rule on Simpler Medical Labels to be Unveiled: U.S. Regulation Seeks to Help Consumers Better Understand How to Use Over-the-Counter Drug Products, L.A. Times, Mar. 11, 1999, at A1 (the Clinton administration has announced a new regulation that requires labels on nonprescription drugs to be in larger print, with more white space, and in clearer language. Drug makers are encouraged (not required) to simplify the language, using throw away instead of discard and lung instead of pulmonary.
Bender's Health Care Monthly, April 1997, at 8.
But They've Still Got Wigs, Newsweek,
1999, at 6.
The English courts recently banned many legalisms from civil courts. They are now looking for 2000 volunteer courtroom observers to ensure that there is no backsliding.
Some examples of old and new usage:
subpoena--now: witness summons
in camera--now: in private
interrogatory--now: request for information.
Some other examples were provided by an article in the Times:
writ--now: claim form
ex parte--now: without notice
Francis Gibb, Legal Latin Outlawed Pro Bono Publico, The Times (London), Jan. 29, 1999, Home News.
The Plain English Movement (p. 220)
p. 220: for an engaging account of how the Citibank promissory came about, despite great resistance by the bank’s legal department, see Duncan MacDonald, The Story of a Famous Promissory Note, 10 Scribes Journal of Legal Writing 79 (2005-6).
p. 221: On the SEC plain English
see 17 C. F. R.
§ 230.421 (i.e.,
the Code of Federal Regulations).
See also Kenneth Firtel, Plain English: A Reappraisal of the Intended Audience of Disclosure Under the Securities Act of 1933, 72 S. Cal. L. Rev. 851 (1999); Andrew T. Serafin, Kicking the Legalese Habit: The SEC's Plain English Disclosure, 29 Loy. U. Chi. L. Rev. 681 (1998).
The Federal Judicial Center has been experimenting with plain English class settlement notices (these are often published in newspapers and are supposed to notify people who might be affected by the settlement of a class action). One interesting finding is that when a notice is too informal, focus groups claim that they would not even read it. This supports the point made in chapter 6, page 100, that formal and ritualistic language can help "frame" an event and signal that it is important. For more information, seehttp://www.fjc.gov (current activities). This information is from 70 U.S.L.W. 2192 (10-2-01).
Another area where convoluted legal
language has been the focus of attention is in disclosures relating to
home loans. Recently, American consumers have been barraged with home
loan offers that contain some very surprising provisions, including
ization and sudden interest rate increases. They are explained in language that few consumers understand, and the companies offering the loans have little incentive to explain them. See Kathy M. Kristof, Confusion Rife for Borrowers, Study Finds, L.A. Times, June 14, 2007, at C1 (referring to a study by the Federal Trade Commission). The Federal Consumer Financial Protection Bureau now has a "Know Before You Owe" project, which advocates for use of simpler mortgage disclosure forms.
For some of the reasons why it may be more efficient for lawyers to preserve legalese, see Claire A. Hill, Why Contracts Are Written in "Legalese" , 77 Chi.-Kent L. Rev. 59 (2001)
Remaining Challenges (p. 228-30)
on the new
FTC rules on over the counter drugs, see the Federal Register at 64
(1999). For some of the alternative "plain language"
terminology that drug manufactures can use, see 21 C.F.R. §
Chapter 14: Communicating with the Jury
A very interesting
jury instructions is now before the U.S. Supreme Court and will
decided around the summer of 2000. It deals with whether the jury
understood a Virginia death penalty instruction (the jury came back
specific question that revealed that it did not understand the
properly). The judge refused to clarify the point, and the
sentenced to death. For the underlying case, see Weeks v.
F.3d 249 (4th Cir. 1999). Cert was granted May 10, 1999.
The case is particularly interesting because the Supreme Court upheld the very same instruction in Buchanan v. Angelone, 552 U.S. 269 (1998). The only difference, apparently, is that in Weeks, the jury actually came back with a question that clearly revealed lack of comprehension. If the Court does deal with the case on procedural grounds, this will be a very important case regarding comprehension of jury instructions.
Note: Weeks lost this case and has since been executed.
Michigan's criminal jury instructions are generally quite good. Instruction CJI2d 8.6 actually uses a contraction: "the prosecutor doesn't have to prove..."
for additional legal texts, see legal texts on this site.
Word and Phrase Index
wife 121 (not 119)
General Index (Whoops! I missed a few things!)
Dickens, Charles, 64
Mayflower Compact, 43
The blurb on the backcover has an
In line 5, '...why it's doesn't have to be" should read
Thanks to Noraini Ibrahim for pointing this out.