6 October 2020 by and Dispute Resolution Alert

“The finest language is mostly made up of simple unimposing words” - George Eliot

The Victorian writer Mary Ann Evans who wrote under the pseudonym, George Eliot, obviously wasn’t a lawyer. Generally, lawyers delight in formal and technical language; a tool in daily use at the bar or side bar. Many ordinary people – and some lawyers - consider traditional legal speak to be outdated, cluttered, wordy, indirect, irritating, difficult to understand and a persistent obstacle to accessible justice.

The Oxford dictionary defines legalese as language used in legal documents that is difficult to understand. Perhaps a sublanguage, it is legal jargon used by lawyers in various types of writing including academic, judicial, legislative, contract and advisory. This sublanguage includes Latin phrases, words drawn from South Africa’s Roman-Dutch law heritage, legal maxims developed over years, made-up or archaic words and phrases that remain popular despite often having neither meaning nor purpose. American writer, editor, literary critic, and teacher William Zinsser, in his book On Writing Well, complained that “We are a society strangling in unnecessary words, circular constructions, pompous frills and meaningless jargon”.

An article entitled “Nothing plain about plain drafting” in De Rebus 2013 (April) DR 19 by plain language practitioner writer and columnist Caryn Gootkin lists problematic styles of writing that lawyers employ including:

  • using many words when one would be enough, like ‘right, title and interest’;
  • choosing grand words over simpler ones such as ‘notwithstanding the fact that’ instead of ‘even though’;
  • using Latin terms instead of simple English equivalents such as ‘inter alia’ instead of ‘among others’;
  • beginning or joining sentences with archaic conjunctions like ‘wherefore’ and ‘whereupon’;
  • writing in the passive rather than the active voice such as ‘an application will be brought by the seller’ instead of ‘the seller will apply’; and
  • listing reams of synonyms to amplify a point introduced by ‘including, but not limited to…’.

Lawyers also love doublets and triplets, stringing together two or three synonyms to convey what is usually a single legal concept, for example, ‘cease and desist’, ‘due and owing’, ‘fit and proper’ or ‘null, void and of no effect’. Much of this redundant language stems from mimicry of the extensive use of alliteration by French, German and Latin legal scholars which serves no purpose in the 21st century. Convention, habit and a large dollop of laziness are probably the main reasons why lawyers still favour archaic language plus, perhaps, a blind reliance on precedent documents handed down through generations. 

Some of the phrases found in pleadings and judgments originate from matters decided long ago and far away from South Africa. In the case of Johannesburg City Council v Bruma Thirty-two (Pty) Ltd 1984 (4) SA 87 (T) the court described the prayer for further and alternative relief as “redundant and mere verbiage”, saying that whatever the Court can validly be asked to order on the papers as framed, can still be asked without that phrase which doesn’t enlarge in any way “the terms of the express claim”.

Standard legal words or phrases might, in limited cases, be the quickest and most succinct way to convey the message but a skilled lawyer should be able to adapt their style of writing to the situation and the intended reader. But the purpose of language is to communicate. Then, simple English must always trump legalese whether the writing is aimed at a client, an opponent or intended to be a clear recordal of an agreement, an opinion, or a pleading. Tempting as it might be to show off your vocabulary, your ability to navigate a Thesaurus and to dazzle with your jargon, the message is always more important than the words.

It should be obvious that simple English - with both clarity and brevity – is preferable to the daily confusion wrought by lawyer speak, but there are two challenges to that.

First; change is hard although encouragingly the best-selling Canadian author Robin Sharma counsels that “Change is hard at first, messy in the middle and gorgeous at the end”. Second, and even if lawyers are prepared to change and embrace simple English, writing simple English is often harder than writing legalese.

Mark Twain famously said: “I apologise for such a long letter - I didn’t have time to write a short one.”

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