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Peter Tiersma, Legal Language

(University of Chicago Press, 1999).

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wish to visit the updates page. It contains newly found material, current developments (since 1999),
a few corrections, and other relevant information.

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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

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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.

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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.

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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