Peter Tiersma, Legal Language
(University of
Chicago Press, 1999).
If you already own the book, or are interested in recent
developments
in legal language, you may wish to visit the updates
page. It
contains
newly found material, current developments (since 1999), a few
corrections,
and other relevant information.
Click here for a publisher's blurb about the book.
A summary of the book appears below.
Legal Language can be
purchased in
good bookstores (especially large independents or academic bookstores)
You can also order the hardcover edition at Amazon.com.
Or you can order the new paperback
edition.
The book is also available at Barnes
and Noble.
LEGAL LANGUAGE
(Summary)
by Peter M. Tiersma
INTRODUCTION
This book aims to provide a relatively comprehensive
description
of legal English, including how it got to be the way that it is, its
present
characteristics, how lawyers use language in the courtroom, and the
movement
to reform it. The major theme running through the book is how
well
legal language functions as a means of communication. Many of the
other
uses or goals of legal language, including the goal of winning cases,
the
law's desire to appear objective and authoritative, and lawyers' use of
language
as a marker of prestige and badge of membership in the profession, may
limit
or conflict with that central aim.
PART I: ORIGINS
How did legal language get to be the way that it
is?
Is it the result of a conspiracy by lawyers to retain their
monopoly?
Or did it just develop naturally over the centuries? To answer
such
questions we need to look at the history of the language of lawyers.
1. CELTS, ANGLO-SAXONS,
AND
DANES
The Celts
There are virtually no remnants of the legal
language
of the original Celtic inhabitants of England, although there are some
indications
that it was poetic and not particularly comprehensible for ordinary
people,
a theme that continues to resonate.
The Anglo-Saxons
The Anglo-Saxons pushed the Celtic language to the
fringes
of Britain. Some Anglo-Saxon words or legal terms have survived
to
today, including writ, ordeal, witness, deem, oath and moot.
Words had an almost magical quality in Anglo-Saxon legal
culture.
Their law used alliteration and conjoined phrases, a practice
that
has, to a limited extent, survived to the present (as in rest,
residue
and remainder). The increasing linguistic complexity of
Anglo-Saxon
laws led to more complicated legal language, suggesting that the
complexity
of legal language may to some extent simply reflect an increasingly
complicated
society.
Latin and the Advent of Christianity
Christian missionaries landed in 597 and
(re)introduced
Latin. Latin terms that entered legal language in this period
include
words like clerk. One impact of Christianity was to
encourage
the use of writing, which was later to have a tremendous impact on the
law.
Although Latin was incomprehensible to most of the population, it
enhanced
communication at a time when there was no standard for written English.
The Scandinavians
Vikings raided the English coast, and eventually
settled
down. Legal terms from Norse include the word law itself,
but
otherwise the language did not have a large impact on legal English.
2. THE
NORMAN
CONQUEST AND THE INTRODUCTION OF FRENCH
William the Conqueror Invades England
The Norman conquest in 1066 placed French-speaking
Normans
in virtually all important positions in England; French thus became the
language
of power. Virtually all English words relating to government are
originally
French. The Normans initially used Latin rather than French as a
written
language of the law. Only around 200 years after the conquest did
French
statutes appear. They remain French until the 1480s. Strong
evidence
that the courts operated in French did not appear until the end of the
13th
century. The use of French in courts seems tied to the expansion
of
jurisdiction of royal courts during this period; royal courts were
logically
conducted in French, which was still the language of the aristocracy
and
royal household at this time. In a sense, therefore, adoption of
French
for legal purposes could initially have promoted communication with
those
most affected by royal law.
Ironically, at the same time that French was in
ascendancy
as the language of the law, use of Anglo-French as a living language
was
beginning to decline. It is probably no accident that this was
also
the period when a professional class of lawyers arose. Soon after
1400,
Anglo-French was virtually extinct as a living language, but it had
become
firmly entrenched as the professional language of lawyers.
The Continuing Use of Latin
Throughout this period, Latin continued to be used
as
a legal language. It came to be known as "Law Latin," and included
various
legal terms of French origin, as well as English words when clerks did
not
know the Latin. Legal maxims, even today, are often in Latin,
which
gives them a sense of heightened dignity and authority. Names of
writs
(mandamus, certiorari) and terminology for case names (versus,
ex rel., etc.) are still in Latin, perhaps a reflection of the use
of
Latin for writs and court records until the early 18th century.
Law French
French eventually became a language used only by
lawyers,
and became known as "Law French." Early efforts to abolish it in
court
proceedings failed. Possible reasons for the retention of Law
French
after its demise as a living language include claims that it allowed
for
more precise communication, especially with its extensive technical
vocabulary;
the dangers of having ordinary people read legal texts without expert
guidance;
the conservatism of the profession; and a possible desire by lawyers to
justify
their fees and to monopolize provision of legal services. If
nothing
else, it reflects the conservatism of the profession at the time.
Some of the characteristics of Law French that have
left
traces in today's legal language include addition of initial e
to
words like squire, creating esquire; adjectives that
follow
nouns (attorney general); simplification of the French verb
system,
so that all verbs eventually ended in -er, as in demurrer
or waiver;
and a large amount of technical vocabulary, including many of the most
basic
words in our legal system. Law French eventually was reduced to
around
1000 words, forcing lawyers to add English words to their French texts
with
abandon. A notorious example is the "brickbat" case from 1631.
Trilingualism and Code-switching
During this period, lawyers had to be trilingual in
French,
Latin and English. Each language was traditionally used in
specified
domains. Even more than today, perhaps, law was in those days a
profession
of words.
3. THE
RESURGENCE
OF ENGLISH
The Demise of Latin and Law French
Use of Latin and Law French for legal purposes
gradually
declined, and was given a final coup de grâce in 1730.
The Increasing Importance of Writing and Printing
Legal language was originally entirely oral.
If
there was a writing of a legal event, it was merely a report of the
oral
ceremony. Eventually, the writing became a type of autoritative
text,
the dispositive or operative event itself. What now mattered was
what
was written, and what was said became largely or entirely
irrelevant.
This progression can be seen in written reports of court proceedings,
which
first merely documented an oral event, but which later became the event
itself,
so that what is said in an appellate court in the United States today
is
legally immaterial; what matters is the written opinion.
Legislation
also went through this progression. Printing contributed to these
trends
by allowing for a standardized and widely-available version of the
written
text. Now all that matters is the enacted text of a statute, or
the
published version of a judicial opinion, which has led to an ever
increasing
fixation on the exact words of legislation, and has permitted the
development
of the doctrine of precedent.
Further Developments in England
As pleadings became written, rather than oral, they
also
became subject to increasing textual scrutiny and were often rejected
for
the smallest linguistic slip. This encouraged use of formbooks,
which
had a conservatizing effect on legal language by promoting continuing
reuse
of antiquated phrasing. And legal documents became ever longer as
clerks
and lawyers charged by the page. In part for these reasons, the
legal
profession began to find itself in low repute.
Legal English Throughout the World
English colonizers transported legal English
throughout
the British Empire, including North America. Despite antipathy
towards
lawyers and the English, the Americans maintained English legal
language.
The Articles of Confederation were linguistically very convoluted and
full
of legalese. Thomas Jefferson advocated improving the style of
statutes,
although did not really follow through. The Declaration of
Independence
and American Constitution are elegant and relatively simple, but in
general,
American legal language closely resembled that of their former colonial
masters.
The same is true in other former English colonies. To a large
extent,
the retention of English legal language is closely related to the
retention
or adoption of English common law. People who adopt concepts from
another
culture tend also to adopt the words used to describe those concepts.
Conclusion
Lawyers did not invent Law French, or today's legal
language,
for the purpose of monopolizing the profession. It developed
naturally,
under the influence of diverse languages and cultures, as well as the
growing
complexity of the legal system and the shift from predominantly oral to
mainly
written communication. Yet to some extent, legal language does
have
the effect of enabling lawyers to retain their virtual monopoly on
providing
legal services. The fact that laymen remain dependent on lawyers
for
creating and "translating" legal texts makes it hard for lawyers to
abandon
their distinctive language.
PART II: THE NATURE OF LEGAL LANGUAGE
How does the language of the law differ from
ordinary
speech and writing? Do these differences enhance clear and
precise
communication, as lawyers typically claim, or detract from it?
4. TALKING
LIKE
A LAWYER
Lawyers seem to have developed some linguistic
quirks
that have little communicative function, and serve mainly to mark them
as
members of the legal fraternity.
Pronunciation and Spelling as Markers of Group Cohesion
The odd pronunciation of defendant (with a
full
vowel in the last syllable, rhyming with ant) and the spelling judgment
(consistently without an e) seem to serve as a marker of
group
cohesion. Ironically, when pronouncing words of Latin or Law
French
origin, the recent trend is not to follow the expected traditional
pronunciation
of the legal profession (i.e., as though the words were English), but
rather
to use the articulation taught in foreign language classes. The
reason
may be that the traditional legal pronunciation sounds unsophisticated
to
the modern ear, and lawyers are very concerned about appearing
prestigious.
Lengthy and complex sentences
Studies show that sentences in legal language are
quite
a bit longer than in other styles, and also have more embeddings,
making
them more complex. Sometimes there seems to be an attempt
to
state an entire statute or linguistic principle in a single sentence,
as
illustrated by a California law against insuring lotteries. Such
a
statute can easily be broken down into more digestible pieces with no
loss
in content, so there is no justification for such long sentences today.
Wordiness and redundancy
Lawyers are very prone to use wordy and redundant
phraseology,
including what is sometimes called boilerplate. Lawyers also tend
to
use ponderous phrases (such as at slow speed or subsequent
to)
where a single word would suffice (slowly; after). On the
other
hand, sometimes legal language is not overly wordy at all, but highly
compact
or dense. The economic incentives and strategic motivations under
which
lawyers operate seem to be significant here: when clients are paying a
large
fee, there is a motivation to be verbose; when a document is written
for
a busy court, however, lawyers realize they have to get to the point
quickly.
Conjoined phrases
Conjoined phrases consist of words like by and and
or, as in I give, devise and bequeath the rest, residue and
remainder...
They have been used since Anglo-Saxon times. Conjoining words
is
still extremely common in legal language. One reason for such
lists
of words is to be as comprehensive as possible. They also can add
emphasis.
But they can lead to ambiguity because of the rule of interpretation
that
every word should be given meaning and nothing treated as
surplusage.
Thus, careful communication requires that lawyers use such conjoined
phrases
with care.
Unusual sentence structure
Lawyers make use of unusual sentence structures, as
in
a proposal to effect with the Society an assurance, which is
taken
from an insurance policy. Often these unusual structures result
in
separating the subject from the verb, or splitting the verb complex,
which
can reduce comprehension.
Negation
Legal language seems to use an inordinate amount of
negation.
To some extent this may result from the tendency to regulate by
prohibition;
judges prefer negative injunctions, for example. Research reveals
that
especially multiple negation impairs communication and should be
avoided.
Impersonal Constructions
A related characteristic of legal style is
impersonal
constructions. The best example is avoidance of first and second
person
expression (I and you). Using the third person in
statutes
does make some communicative sense (as in Sex offenders shall
register
with the police...) because the statute "speaks" not only to sex
offenders,
but to the police and the courts; you might therefore be inappropriate
or
ambiguous. Elsewhere (as in the tendency of judges to refer to
themselves
as the court rather than I) it creates an impression of
objectivity
and authority, thus helping to legitimate the legal system.
Multi-judge
panels seem less reluctant to use we, and will even use this
pronoun
to refer to a decision made by their predecessors long ago. Here,
the
first person stresses the continuity and perceived timelessness of the
law.
Conclusion
Many of the quirky or stylistic features of legal
writing
serve little or no communicative function and could easily be dispensed
with,
especially because they may reduce comprehension.
5. THE QUEST FOR PRECISION
One of the main justifications for a distinct legal
language
is that it is capable of extremely precise communication.
Avoiding Pronouns: "Player Promises That Player Will Play..."
One means of gaining precision is to repeat nouns
(e.g.,
player), rather than using a pronoun (e.g., he) after a person or thing
is
introduced. Pronouns can sometimes have ambiguous reference, so
this
technique can indeed enhance precision. Lawyers, however, avoid
pronouns
almost routinely, even where no ambiguity is possible. Avoiding
pronouns
does have an unintended benefit: it reduces the use of sexist
language.
Undermining Precision: "The Masculine Shall Include the Feminine"
Legal documents often declare that the masculine
includes
the feminine, the singular includes the plural, or that one tense
includes
the other. This may originally have functioned to reduce
verbosity,
as suggested by Jeremy Bentham, but it obviously can undermine precise
communication
when reference to a specific gender, number or tense is desired.
Perhaps
legal language is not always so precise, after all.
Strategic Imprecision: Obscuring the Actor Through Passives and
Nominalizations
Passive sentences allow the speaker or writer to
omit
reference to the actor (as in the girl was injured at 5:30). One
reason
lawyers use passives is for strategic reasons: to deliberately
de-emphasize
or obscure who the actor is. Passives are therefore impersonal,
giving
them an aura of objectivity and authoritativeness; this may explain why
they
are common in court orders. They are less common in contracts,
where
the parties typically wish to spell out exactly who is to do what, and
thus
have an interest in precise reference to the actors.
Nominalizations are nouns derived from verbs (e.g.,
injury
from the verb injure). Like passives, they can be used to obscure
the
actor (the injury occurred at 5:30). A legitimate function of
nominalizations
is that they allow the law to be stated as generally and objectively as
possible.
Lawyers often use passives and nominalizations strategically,
however.
They avoid them when they wish to be as precise as possible, and use
them
when they wish to be deliberately imprecise.
Flexible, General, or Vague Language
Some legal terms are not precise at all, but are
noted
for their generality, flexibility, or even vagueness (e.g., reasonable
or
due process). Flexibility has a valid communicative function; a
term
like reasonable can change with the times and circumstances.
Because
it can change with the times, flexible language is characteristic of
constitutions.
It may also be valuable when lawyers wish to be as comprehensive as
possible.
Yet sometimes a term like obscene or indecent is felt to be too
pliable,
because it gives great discretion to the decisionmaker; the Supreme
Court
has tried to limit that flexibility by tying obscenity to community
standards.
Flexibility is likewise less appropriate in criminal statutes in
general,
because people ought to know in advance what is legal and what is
not.
Lawyers also are nervous of overly flexible language, because it may be
interpreted
in an unintended way in the future.
The Tension Between Flexibility and Precision
Lawyers are often torn between the conflicting goals
of
flexible communication (through the use of general language) and
precision
(often by using word lists of specific examples). Sometimes it is
possible
to avoid the vagueness problems inherent in flexible terms by using a
word
list, which tends to allow for more precise communication. This
is
illustrated by a hunter harassment statute, which a court struck down
on
vagueness grounds when it forbade harassing hunters in general terms,
but
later upheld after the legislature added a specific list of prohibited
activities.
But aiming for precision by using lists has its costs. There are
several
interpretive maxims, including noscitur a sociis, ejusdem generis,
and expressio unius, which all tend to restrict, rather than
expand,
the interpretation of items in a list. Elsewhere, flexible
language
has sometimes proven preferable to precise lists, as shown by
developments
in the prudent investment rule. Lawyers consequently aim to
achieve
the best of both worlds by using phrases like any X, including but
not
limited to a, b, and c, thus marrying the general and the specific,
but
there will inevitably be tensions between the two.
Conclusion
Legal language can, in some ways, communicate quite
precisely.
But other characteristics undermine precision, and certain features can
be
used strategically to be deliberately imprecise. Furthermore,
lawyers
may opt for flexible communication, which is in some ways the opposite
of
precision and is often in tension with it.
6. THE LEGAL
LEXICON
Another way in which the language of the law is
claimed
to promote clear and concise communication is through a specific legal
vocabulary.
Legal Archaisms
A common criticism of the legal vocabulary is that
it
is full of antiquated features. These include archaic morphology
(further
affiant sayeth not); the legal use of same, said, aforesaid, such and
to
wit; use of the subjunctive, especially in the passive (be it known);
and
words like herewith, thereunder, and whereto. Although these
expressions
often had a legitimate function in the past, the claim that archaic
words
or expressions should be preserved because they are somehow more
precise
than ordinary language is simply not defensible.
Linguistic Creativity
New Wine in New Bottles
Even though some legal language is quite archaic,
many
other old legal terms have died off as the concepts to which they refer
became
obsolescent. In fact, some areas of the legal lexicon are very
innovative,
as in terms like zoning and palimony. Such terms give the law the
ability
to deal with novel circumstances and legal developments.
Asylees, Escapees and Tippees
Another example of linguistic creativity in legal
language
is the frequent formation of new words ending in -ee, which
contrast
to those ending in -or (mortgagee/mortgagor).
Although
these pairs are confusing for the lay public, they can enhance
communication
within the profession by filling lexical gaps that exist in ordinary
language.
Conservative or Innovative?
Legal language is neither hopelessly conservative
nor
remarkably innovative. Often there are reasons for using
antiquated
vocabulary. Like religious language, the language of the law is
quite
conservative with regard to sacred or authoritative texts, which
adherents
are reluctant to change or even to translate for fear of affecting the
meaning.
The fact that courts have authoritatively interpreted a term does
inspire
caution, of course. Further, using proven language over and over
can
be economical. A less palatable reason is that because archaic
language
is hard for most people to understand, lawyers sometimes have a
financial
incentive to use it to help justify their fees. Yet when dealing
with
new legal concepts for which there is no existing word, lawyers do not
hesitate
to create novel terminology. As a result of these conflicting
motivations
and goals, legal language is an odd mixture of archaic alongside very
innovative
features.
Formal and Ritualistic Terminology
The legal lexicon also has many formal or
ritualistic
words and phrases. One function of such language is to emphasize
that
a proceeding is separate from ordinary life. Often ritualistic
language
frames a legal event by signaling the beginning and the end. In
private
legal documents, ritualistic and formal language indicates that
something
like a will is an important legal act, sometimes called the ritual or
cautionary
function of legal formalities. Of course, this function could be
fulfilled
by means that are more comprehensible. In fact, taken to
extremes,
formal language is simply pompous and serves little function besides
its
possible prestige value.
Do and Shall
When do is used in a declarative sentence,
it is
normally to add emphasis. This is not its function in legal
language
(e.g., The People of California do enact...) Here, it
marks
that something is a performative. The adverb hereby (as in the
People
of California hereby enact...) fulfills the same function:
indicating
that by saying enact, the legislature by those very words
engages
in the act of enacting. Because do is anachronistic and unusual
in
this usage, it should be avoided; hereby can easily communicate
performativity,
where necessary.
Shall is also used in an unusual sense in
legal
language. It is commonly said that legal use of shall does
not
indicate the future, but the imposition of obligation. But shall
appears to function also in promises or declarations. In
reality,
shall seems to mark that the phrase in which it occurs is part
of
the content or proposition of a performative phrase. Thus, in a
contract
the parties perform the act of promising by signing the contract; the
content
of their promises is indicated by shall. Shall does
have
the function of indicating that the document in which it occurs is
legal,
which may help explain its pervasiveness in legal language.
Generally,
however, the meaning of shall can be communicated more comprehensibly
by
must or will or is.
Jargon, Argot and Technical Terms
It is sometimes said that the legal vocabulary is
full
of argot. Argot is generally used to communicate in secret among
a
small group; this does not properly typify legal language. Others
claim
that legal terminology is largely jargon. I use the term jargon
to
refer to language of a profession that is not sufficiently precise to
qualify
as a technical term (e.g., conclusory). Jargon can be
useful
in facilitating in-group communication, but should obviously be avoided
in
communicating with the public.
If the distinctive legal vocabulary actually
enhances
communication, it must be mainly through technical terms, or terms of
art.
It is sometimes claimed that legal language has few true terms of
art.
Any law dictionary reveals that there are large numbers of technical
terms,
however. Those who claim otherwise may have too strict a notion
of
the precision required for a technical term. As long as an
expression
has a relatively exact meaning, is used by a particular trade or
profession,
and promotes brevity of expression, it fulfills an important
communicative
function and can properly be called a technical term. Such terms
are
less exact in law than in the hard sciences because legal terms
typically
refer to concepts that change over time, or are slightly different in
divergent
jurisdictions. And they may be modified by judicial
decisions.
Contrary to expectations, judicial decisions, by following the intent
of
the drafter over the "plain meaning" of a word, often make the meaning
of
the word less precise. Courts and the legal profession could work
together
to make legal terminology much more exact, but it would come at the
cost
of negating the intentions of speakers who use a term in a different
sense.
Legal terminology will therefore never be as precise as the profession
might
hope.
Relationships Among Words
In ordinary English words exhibit certain systematic
lexical
relationships. The same is true for legal language, but with a
number
of deviations that can trap the uninitiated.
One way that words can be related is as homonyms, or
via
polysemy. In either case, one word or sound sequence has two or
more
meanings. This can cause communication problems when legal terms
have
both an ordinary meaning and a divergent legal meaning (as in
consideration
or personal property). These words, which I call legal homonyms,
are
particularly problematic because laymen are very likely to
(mis)interpret
them in their ordinary sense, and even courts are sometimes unsure
whether
the ordinary or technical meaning was intended.
Words can also be related as synonyms, which refers
to
words with very similar meanings. On the one hand, lawyers are
told
to avoid synonyms or elegant variation. Using a different word is
assumed
to invoke a different meaning. On the other hand, lawyers have a
great
love for long lists of synonyms, especially in conjoined phrases.
Lists
of synonyms can thus create interpretative problems.
A final relationship is antonymy, or lexical
opposites.
Legal language has a tendency to create such opposition where it does
not
normally occur. Speech and conduct overlap in ordinary language,
but
American courts now treat them legally as opposites: if something is
speech,
the First Amendment applies; if an action is mere conduct, it does
not.
Yet it must be confusing for the layperson to read that burning an
American
flag is free "speech."
7.
INTERPRETATION AND MEANING
This section discusses several ways in which legal
interpretation
and meaning differ from ordinary language interpretation, and some of
the
reasons why.
Definitions
Definitions nowadays are normally descriptive, which
means
they are based on usage. In common law countries, no one has the
authority
to dictate how a word ought to be used, which would constitute a
prescriptive
definition. Definitions in legal language, however, are
prescriptive
because here there is an institution that can dictate how a word ought
to
be used: the legislature.
I call these declaratory definitions. They
also
occur in contracts and other legal documents. Such definitions
can
promote more precise drafting by stipulating that one of several
possible
meanings is intended. But they are also hazardous, because the
reader
may not always realize that what seems to be an ordinary word is
defined
in a specific--sometimes, aberrant--way. There are also
incorporating
definitions, which are not really definitions at all. They simply
take
a large amount of text and define it as X, allowing the text to be
removed
from the body of the statute and placed with the definitions.
Although
the practice can minimize redundancy in the text, it can also make less
transparent
and harder to find.
Reference
Reference is important to the law; the law of
trademarks
is largely about preserving the unambiguous reference of marks.
Ambiguity
of reference can also cause problems in wills. To avoid
referential
ambiguity in legal documents, lawyers often use what I call declaratory
reference,
declaring in a document that Garcia shall refer to Hilda Garcia, an
individual
residing in San Antonio, Texas. Linguists also distinguish
between
referential descriptions (a specific person or thing) and attributive
descriptions
(whoever meets the description). This is quite relevant in the
law
of wills, where a gift of my car could be either
referential--the
car I now own--or attributive (whatever car I own at death).
Further,
legislation is almost always written in an attributive (thus,
objective)
way, applying to any person who fits a description. This can be
abused,
however, as when a tax break that seems to be attributive in fact
refers
to a specific person or entity.
Meaning
Legal interpretation differs in several ways from
ordinary
understanding. In ordinary language, what really matters is what
a
speaker means by an utterance (speaker's meaning), rather than what a
word
or utterance means (word or sentence meaning). Irony provides a
good
example, because here the sentence meaning (I love being hit on the
head
by a brick) is highly misleading. In theory, legal interpretation
of
private documents also focuses on the speaker's meaning, but this is
undermined
by the evidentiary limitations of the parol evidence rule. With
statutory
interpretation, courts now often look to the intent of the speakers
(legislative
intent). Yet referring to legislative intent is controversial,
especially
in the theory of interpretation called textualism, which has revived
the
plain meaning rule. The plain meaning rule excludes consideration
of
extrinsic evidence when the meaning of a statute is plain from a
reading
of the text itself. This is completely inconsistent with ordinary
language
interpretation, which uses any cues it can--such as shared background
knowledge
or information on the circumstances of an utterance--to determine the
speaker's
meaning.
But the plain meaning rule is not entirely
irrational;
it derives to some extent from the historic shift from oral to written
communication.
We tend to interpret written texts differently from speech.
Someone
who writes a text often tries to make it as autonomous as possible, so
that
any information needed to interpret it is contained in the text
itself.
This is often necessary, because the reader of a text may be in a very
different
location, at a very different time, and may know little or nothing
about
the circumstances surrounding the writer. Logically enough, legal
documents
are written to be very autonomous. One view of the plain meaning
rule,
therefore, is that judges will assume that the drafter was successful
in
creating an autonomous document, so that ideally extrinsic evidence
should
not be needed. At least as an initial assumption, this seems
sensible.
Another reason for legal interpretation to place
less
emphasis on the speaker's meaning is the problem of collective
authorship,
as well as the fact that one or more of the authors may be dead or
otherwise
unavailable. Furthermore, legal interpretation must deal with the
problem
of gaps, when the text is silent on a particular point. In a
spoken
conversation, one interlocutor can ask the other to fill the gap.
With
most legal documents, courts must find some other means of deciding
what
to do when the text is silent. Courts thus necessarily construct
meaning
where there was none before, rather than simply interpreting the
text.
This is sometimes difficult to spot because courts prefer not to act in
overtly
authoritative ways, so they continue to speak of interpretation while
actually
engaging in construction.
A final difference between legal and ordinary
interpretation
derives from the fact that an interpreter must always keep in mind the
rules
and conventions used by the speaker or writer. There is a
symbiotic
relationship between encoding and decoding language. The evidence
accumulated
in this book suggests that legal writers do indeed use language and
drafting
conventions that are distinct from ordinary language. An example
is
that normally if someone uses synonyms, we assume she is engaging in
elegant
variation and that the synonymous terms refer to the same thing.
Legal
drafters generally try to avoid such variation; the legal interpreter
will
thus assume that the synonyms in fact refers to something
different.
Most students of legal interpretation have concentrated on what courts
do,
but they should perhaps pay more attention to the legal language and
conventions
of the drafters.
8. VARIATION
IN
LEGAL LANGUAGE
Legal Dialects
Dialects reflect linguistic variation on the basis
of
geography. Legal language is not a dialect, but it does have
dialects
of its own in that it varies according to place. Some of this
dialectal
variation results from differences in legal systems; English lawyers
speak
of solicitors and barristers, a distinction not made in the United
States.
Elsewhere, the concepts are similar, but words for them are different
(British
company law versus American corporate law). In countries such as
India,
legal English is infused with many terms for indigenous legal
concepts.
Thus, even though legal language is quite conservative in some senses,
in
other ways it again reveals itself as a relatively flexible means of
communication
by readily adapting to the situation in which it is used.
Spoken Legal Language
Legal language further varies depending on whether
it
is spoken or written. The most salient characteristics of
legalese--archaic
vocabulary, long and convoluted sentences, use of passives and
nominalizations--are
far more evident in written legal language. Written language is
also
more compact and dense. Spoken legal language tends to be less
formal
overall. An oral judgment by an English judge is perhaps the most
formal
type of spoken legal English. Oral arguments to a court tend to
be
in standard English, while addressing a jury might very well be in a
regional
variety of English that is aimed at identifying with the local
population.
As with medieval lawyers, choice of language variety in specified
domains
is dictated to some extent by tradition, but these days strategy also
plays
an important role.
Telegraphic Speech
Telegraphic speech leaves out all words that could
be
supplied by context; it is common in telegrams and headlines. It
is
often heard in the courtroom (lawyer: Objection! Judge: Overruled),
but also in some quite formal settings, as at the end of an opinion (appeal
dismissed). It again illustrates that lawyers can cut out
excess
verbiage when its suits their purpose.
Legal Slang
Despite claims that their speech habits are very
formal,
even pompous, lawyers not infrequently use legal slang. Slang
enhances
group cohesion and is often shorter (thus more "linguistically
efficient")
than more formal language. Examples include rogs for
interrogatories,
TRO for temporary restraining order, SLAPP suit for strategic lawsuit
against
public participation, and idioms like grant cert for grant a writ of
certiorari.
Variation and Genre
There are various genres, or types, of legal
writing.
They illustrate again that legal language is not monolithic, but can
vary
substantially depending on the situation. Pleadings, petitions,
orders,
contracts, deeds and wills can be called operative legal documents
because
they create and modify legal relations. They tend to use a great
deal
of legalese. Expository documents are those that explain the law,
including
office memoranda, judicial opinions, and client letters. They
tend
to be in formal but standard English, with little legalese, except that
they
do use many technical terms. Especially judicial opinions have a
fair
amount of stylistic freedom, making use of metaphors and sometimes even
poetry.
Persuasive documents include briefs to a court and memoranda of points
and
authorities; their language is similar to expository documents.
It
is interesting and ironic to observe that documents drafted more
directly
for clients (operative documents like wills and contracts) seem to
contain
the most legalese, while those directed to colleagues within the
profession
(expository and persuasive documents) contain relatively less.
So What Is Legal Language Exactly?
Legal language has been called an argot, a dialect,
a
register, a style, and even a separate language. In fact, it is
best
described with the relatively new term sublanguage. A sublanguage
has
its own specialized grammar, a limited subject matter, contains
lexical,
syntactic, and semantic restrictions, and allows "deviant" rules of
grammar
that are not acceptable in the standard language. However we
describe
it, legal language is a complex collection of linguistic habits that
have
developed over many centuries and that lawyers have learned to use
quite
strategically.
PART III: IN THE COURTROOM
9. PLEADINGS: CONSTRUCTING THE
LEGAL
NARRATIVE
Narratives
A very general narrative structure, sufficient for
our
purposes, begins with some background information, continues with a
chronological
description of a series of events that leads to a problem or
crisis.
The narrative ends with the resolution of the problem or crisis.
Pleadings
The pleading stage, which begins a lawsuit, is where
the
plaintiff tells his story to the court. As a narrative, it is
incomplete
in at least two important ways. Unlike an ordinary story, which
is
asserted as truth, the story told in a complaint is merely alleged to
be
true; its truth remains to be established at trial. And it is
incomplete
in the sense that there has not yet been a resolution of the problem or
crisis;
this depends on the outcome of the trial.
The defendant can respond to the pleading in various
ways:
arguing that the story in the complaint is not legally adequate, or
that
the decisionmaker does not have the authority to offer a resolution
(jurisdiction).
Another option is to admit that the story is adequate, but to challenge
its
truth by denying the facts, or offering a counternarrative.
Pleadings tend to be extremely ritualistic in
language.
In medieval times, what mattered was not so much the content of a
pleading
as the words that were used; one slip could be fatal. Pleading
remains
formal and ritualistic, but currently the content has become far more
important
than the form.
Once the pleadings have determined that the
plaintiff's
story is legally adequate, the trial--to determine the truth--can begin.
10.
TESTIMONY
AND TRUTH
Many cases do not actually go to trial, but are
settled.
In criminal law, the settlement process is called plea bargaining, a
process
that can be quite informal and has developed a jargon or slang of its
own.
When a case does not settle, it proceeds to
trial.
Various rituals signal that a trial is about to commence. The
first
order of business in a jury trial is the voir dire of the jurors.
The
search for truth can then commence. Most of the examples in the
next
two chapters derive from two murder trials, including that of O.J.
Simpson.
Language Variation and Code-Switching in the Courtroom
Just as lawyers switch between language varieties when
writing,
they do the same when speaking in the courtroom. Normally, choice
of
one variety over another depends on the topic of conversation, or the
ability
of the hearer to understand a particular type of speech. Yet
using
a particular variety of language also has social implications in that
we
judge people by the language they use. Furthermore, use of a
common
variety of language can create a sense of group cohesion. Lawyers
are
inclined to use standard English in court when they wish to appear
intelligent
and competent, and regional varieties of English when they wish to bond
with
a jury.
Questioning of Witnesses
Witnesses come to court to tell their own story,
which
forms part of the larger narrative that is on trial. Although
they
generally prefer to tell their tales in narrative form, the legal
system
forces them to testify through a rigid question and answer format,
which
allocates control over testimony to the examining lawyer.
Direct Examination.
Direct examination generally begins with giving the
witness
an opportunity to present a very brief narrative. The examining
lawyer
then generally follows up with increasingly coercive or controlling
questions,
including wh-questions, which limit the witness to a brief response, or
yes/no
or alternative questions, which allow only two possible
responses.
Lawyers use such questioning strategically, to
ensure
that all and only legally relevant facts are told, as well as to keep
problematic
facts from emerging, if possible. Careful questioning can also
enhance
precise communication by clarifying ambiguities in a witness's answer,
or
by asking the witness to explain unusual terminology.
Cross-Examination. Cross-examination
allows
an even more coercive question type: leading questions. Such
questions
are not tied to any specific form, but have in common that they suggest
a
single answer. One function of such questions is to muddy the
waters
by undermining the clarity of the witness's communication during direct
examination.
Or they can be used to undermine credibility by eliciting a clear
statement
that can later be contradicted by other evidence, as Simpson's lawyers
did
during cross-examination of Detective Mark Fuhrman.
The Language of Questioning
Lawyers are well aware that if they wish to
communicate
effectively with the jury though questioning, they must generally use
ordinary
English, not legalese. Their language tends to be fairly formal,
however,
to convey to jurors that they are intelligent and competent. Out
of
the presence of jurors, as during sidebar conferences, lawyers tend to
be
less formal and may even use slang, perhaps to emphasize that although
they
are adversaries, they belong to the same profession.
Implications of the Questioning
Process
Questioning is not a neutral and transparent process
of
obtaining information. Narrative answers are generally more
accurate
than fragmented responses, for example. The wording of a question
can
influence the responses given by witnesses, according to
psycholinguistic
tests. Research also confirms that leading questions can
influence
the recall of witnesses. While objections by counsel can limit
these
influences, suggestive questioning is particularly problematic when it
is
used to subtly coach witnesses, out of the presence of a jury or
opposing
counsel.
The way that questions are answered can also
influence
the perceived credibility of the witness, the examining attorney, or
both.
Witnesses who speak in a powerful style (using little hedging and
hesitation,
for example), as well as those who speak formal standard English, tend
to
be evaluated as more intelligent, competent, and truthful. This
is
especially problematic for witnesses who cannot easily change their
speech
style. Ironically, trial lawyers have become aware of the
research
and are attempting to incorporate it into their trial strategies.
Creating a Written Record
The testimony of witnesses is transcribed by a court
reporter.
It is not truly verbatim and complete. One reason is that
nonverbal
information is not consistently included, although lawyers will
sometimes
ask that the record reflect nonverbal information. More troubling
is
that reporters sometimes "clean up" the language of lawyers and judges,
to
enhance their feelings of prestige.
As in other areas of the law, the written text of
the
record has become what matters once the trial is over, making the
actual
oral event virtually irrelevant in subsequent proceedings.
Lawyers
consciously try to create an advantageous record through their
questioning
strategies. And as with other written legal documents, the record
tends
to be interpreted as an autonomous text. Thus, in perjury
prosecutions,
courts fixate on the language of the record to determine whether a
witness
made a false statement, largely ignoring the speaker's actual
intentions.
11. COMPLETING THE STORY
After the lawyers have produced evidence
(largely testimony)
to prove or negate the plaintiff's story, they make their
summation or closing argument.
Closing Arguments
In closing, the plaintiff's attorney must weave
together
a complete narrative out of the disorganized fragments that were
presented
by various witnesses and other evidence at trial, much like a film
editor.
She must also persuade the jury that the story is true. Although
lawyers
tend to favor long lists of synonyms, for example, in closing they
typically
chose one or two that convey a sense or connotation that favors their
strategic
interest (as in calling an unborn child a baby in an abortion
prosecution).
They also use antonymy by contrasting one term with its opposite.
Although some lawyers use fairly formal standard
English,
they generally tend to be more effective if they use a somewhat more
conversational
variety. During her summation in the Simpson case, prosecutor
Marcia
Clark tried to bond with the female jurors by opening herself up and
revealing
her emotions, but was not really successful. Prosecutor Darden
may
have been somewhat more successful, carefully using second person
pronouns
to suggest that the murder victim, Nicole Simpson, was sending jurors a
message
from beyond the grave.
Defense attorny Johnny Cochran successfully
personalized
his client by emphasizing that he was Orenthal James Simpson, not
merely
the defendant. Like Anglo-Saxons of long ago, he used conjoined
alliterative
phrases (that the evidence was compromised, contaminated and corrupted)
and
rhyme (if it doesn't fit, you must acquit). Unlike Clark, Cochran
successfully
bonded with the mainly African American jury by invoking themes and
images
of the civil rights movement, and speaking like a preacher in a Black
church.
He used inclusive we to suggest a shared journey towards justice.
Overall,
by using relatively formal and standard English, he came across as well
educated,
while the subtle intonation and accents of a Black preacher allowed him
to
invoke group solidarity.
Instructing the Jury
In many proceedings, it is members of the
public--the
jury--who must decide the truth of the plaintiff's story. To some
extent,
the jury must also decide whether the story is legally adequate.
Judges
tell the jury how to go about this task by means of jury
instructions.
Unfortunately, most jury instructions are essentially written legal
language,
though presented orally, and thus do not communicate the law very well
to
the lay members of the jury. And judges seem to prefer formal
language
to appear objective by distancing themselves from other participants.
The reasonable doubt instruction is especially
problematic;
there is substantial evidence that jurors do not understand it very
well,
in part because it tracks the language of an 1850 case.
Unfortunately,
judges are extremely reluctant to explain the instructions in ordinary
language,
treating them as sacred text, and generally rereading them verbatim if
the
jury inquires regarding their meaning.
Resolving the Conflict
Just as lawyers use stories to present their cases,
research
indicates that jurors use them to determine the truth. The
"truth"
determined by the verdict is not factual truth, however, but "declared
truth,"
which governs all later legal proceedings. After this "truth" is
established,
the judge is in a position to complete the unfinished narrative of the
complaint
by offering a resolution (or denying one) in her judgment.
PART IV: REFORMING THE LANGUAGE OF
THE LAW
Members of the public have been frustrated
with legal
language for quite some time. There has also been criticism from
within
the profession. In this section we discuss efforts to reform the
language
of the law. This can happen either via simplification (making the
language
of lawyers much more like ordinary language) or translation (leaving
legal
language essentially as it is but providing better translation to the
public
in ordinary language, when needed). Ultimately, we will probably
need
a bit of each.
12. WHAT MAKES LEGAL LANGUAGE DIFFICULT
TO UNDERSTAND?
Research shows many of the ways in which
legal language
causes problems in comprehension, especially for a lay audience.
Technical
vocabulary, unusual and archaic words, impersonal constructions, use of
moadal
like shall, multiple negation, long and complex sentences, and poor
organization
are all problematic. In fact, virtually all features of legal
English
seem to impede communication with the public.
13. PLAIN ENGLISH
Given that legal language does not
communicate very will
with the public, what has the profession done about it?
Internal Legal Language
Internal legal language refers to communications
directed
at other legal professionals. Here, the need to reform would seem
less
compelling. Yet even internal communications are generally made
on
behalf of a client, who has a right to know what is being asserted on
her
behalf.
One area where the courts have explicitly recognized
that
people have a right to know what legal language means is criminal
statutes,
which must place the "average person" on notice that something is
illegal.
It is doubtful, however, that people really understand such
statutes.
Unfortunately, it may not be realistic to expect the average person to
understand
statutes. Understanding a statute requires more than plain
language;
a person must also have some background knowledge of the legal system
and
relevant judicial decisions. Still, we should strive to make
statutory
law as clear as possible. In fact, a fair amount of progress has
been
made; law schools teach plain English principles and drafting manuals
encourage
such practices. There has been progress in non-English speaking
countries,
like Sweden and Japan, as well. Overall, the organization and
format
of statutes has dramatically improved, and there is far less
legalese.
Unfortunately, statutes are ever more complicated in terms of
substance.
Better drafting practices in some ways allows them to become longer and
longer.
Progress with other types of internal legal language
is
more mixed. Pleadings are still very formulaic. On the
other
hand, judicial opinions have greatly improved in style (though perhaps
somewhat
less in the United Kingdom).
Consumer Documents
Members of the public have an even greater interest
in
understanding consumer documents, which directly affect their rights
and
obligations.
Evidence shows that consumers do not understand legal documents like
credit
agreements and insurance policies very well.
The Plain English
Movement
The Plain English Movement, part of the consumer
movement,
grew out of the notion that people should be able to understand
important
consumer documents. The movement was inspired by a revised
promissory
note introduced by Citibank in the 1970s, and eventually led to a fair
amount
of plain English legislation. Similar reforms occurred in
countries
like Australia and the United Kingdom.
Plain English
Legislation
Is legislation the most effective way of promoting
plain
English? The earliest such statutes were phrased in very general
or
flexible terminology, requiring documents simply to be "clear and
coherent."
Later legislation aimed for greater specificity and precision by use of
the
list approach, establishing a list of guidelines like the use of active
verbs,
short sentences, and no cross references. But guidelines are only
as
good as the people who apply them, and are hard for judges to
review.
A somewhat different approach is objective, requiring that documents
meet
certain readability criteria, like the Flesch test. This test is
easy
to apply because it merely measures the average length of sentences and
words.
Scholars have criticized it because there is no direct relationship
between
word or sentence length and comprehension. Yet if we assume that
writers
are acting in good faith and not trying to fool the test, it does seem
to
measure comprehension fairly well. In the long run, more complex
and
accurate computer programs will probably be available to accomplish
this
task.
Some Remaining
Challenges
Although the Plain English Movement has made
substantial
progress in improving the language of consumer documents, there are
other
types of documents that affect the rights and obligations of the public
but
are still typically in legalese. These include wills, medical
consent
forms and consents to search, releases of liability, legal notices, and
warnings.
The movement still has work to be done.
14. COMMUNICATING WITH THE JURY
In a sense, jurors who receive jury
instructions are also
consumers. And like consumers, they do not understand the legal
language
that is read to them very well.
Confusion and its Consequences
There is a substantial body of research showing that
pattern
jury instructions poorly communicate the law to the jury. Revised
instructions
raise the level of comprehension significantly. This is an
important
point, because we cannot expect jurors to follow the law when they do
not
understand it. Unfortunately, courts are very reluctant to
deviate
from tried-and-true instructions which track the language of a statute
or
have been approved by an appellate court, even if that approval came
many
decades ago. Judges who try to explain the instruction in plain
language
typically are overruled. Jury questions about the instruction are
generally
answered by simply rereading the antiquated language of the
original.
Yet legal accuracy is pointless if jurors do not understand the
instruction
very well in the first place. Perhaps the only real possibility
for
reform is the committees that draft pattern instructions in many
states.
Several such committees have indeed tried to improve comprehension, but
progress
has been uneven. Often change is controversial, leading to
maintenance
of the status quo.
Capital Instructions: Comprehension
As a Matter of Life or Death
Nowhere are the consequences of poor communication
more
dramatic than in capital cases. Constitutionally, capital juries
must
have guidance in carrying out their task. Because the guidance
comes
largely in the form of obscure jury instructions, it is often sorely
lacking.
For example, many state death penalty laws instruct jurors to weigh
mitigating
and aggravating evidence. But mitigate is a formal word that many
people
do not understand, and aggravate is a legal homonym: it has an ordinary
meaning
(annoy) that differs in an important way from its legal meaning (a
reason
to put someone to death). There is evidence that many jurors do
not
understand these terms very well, even though they are essential in
deciding
whether to recommend the death penalty.
The problem is not just comprehension of individual
words.
A survey by Professor Hans Zeisel found that jurors did not
sufficiently
understand several points conveyed by the Illinois pattern
instructions,
including the critical point that they were to balance mitigating and
aggravating
factors. This evidence was offered to the federal courts in the
habeas
corpus petition of James Free, a condemned murderer. A federal
district
court was convinced that Free's jury was indeed confused, and vacated
his
death sentence. Before the Free case could be appealed, another
inmate
on Illinois's death row, the notorious serial killer John Wayne Gacy,
argued
that his jury had received the same instructions and that his
sentence--on
the grounds of the Zeisel survey--should also be set aside. He
lost
in the trial court, and lost again on appeal. Finally, Free's
case
came before the Seventh Circuit. The court rejected the Zeisel
survey,
in part because there had been no control group that received revised
instructions.
Of course, there is strong evidence that as a general matter, revision
of
instructions using plain language principles invariably increases
comprehension.
Indeed, a later study using a control group showed that revising the
Free
instructions resulted in significantly better understanding.
Of course, the law is complex; the research into
jury
instructions indicates that the ordinary public will never understand
all
aspects of it perfectly, even if stated in plain language. But
jurors
can and should understand their task much better than they now
do.
CONCLUSION
Legal language includes some very complex
linguistic practices
of an ancient profession. Because legal English itself is not
monolithic,
and is used to attain various goals, our assessment of its usefulness
will
depend on a large number of considerations. Some of its features
are
nothing more than time-worn habits that have long outlived any useful
communicative
function. Other characteristics arguably serve some function,
such
as signaling that an event is an important proceeding, or enhancing the
cohesiveness
of lawyers as a group, but should be abandoned because they detract too
much
from the paramount goal of clear and efficient communication. In
yet
other cases, lawyers approach language strategically, actually
preferring
obscurity to clarity; obviously, such usage impedes the overall goals
of
the legal system and its language. More problematic are features
that
clearly enhance communication within the profession but mystify
outsiders.
Here, we may need to weigh how important it is for the lay public to
understand
the language at issue. In the final analysis, legal language must
be
judged by how clearly and effectively it communicates the rights and
obligations
conferred by a constitution, the opinions expressed by a court, the
regulations
embodied in a statute, or the promises exchanged in a contract.
While
ordinary people may never understand every detail of such legal
documents,
our law should be stated as clearly and plainly as it can be.
Democracy
demands no less.
APPENDIX
The appendix includes a selection
of legal texts, including an Anglo-Saxon land grant, a case report in
Law French, a modern will, excerpts from the OJ Simpson jury
instructions, and an original and revised Citibank (plain English)
promissory note.