On Legalese

“Monday Musings” for Monday October 19, 2015

Volume V No.43/251

supremecourt

THINKING THINGS THROUGH:

 LEGALESE LANGUAGE

By Assad Meymandi,, MD, PhD, DSc (Hon), DLFAPA*

 When it comes to learning a foreign language, I am no pushover. My late mother used to tell me that by the time I was five years old, I could speak, read and write five languages. Foreign languages do come to me with ease. I even learned conversational Chinese to get by in the 1970s during my trips to the People’s Republic of China. In 1955, when I came to this country to study medicine, I memorized the Oxford Dictionary in three months.

Since I filled out my first form for a Social Security card, way back in 1955, I have made a concerted effort to learn the two languages of bureaucratese and legalese. This is not bragging. This is a plea for help. After sixty years of studying legalese, I must confess that I am as ignorant today as I was 60 years ago. I am ready to give up.

The national statistics indicate that we have more lawyers in the United States than in the rest of the world put together. In the 1970s, while visiting the People’s Republic of China, I learned that the entire nation of one billion people produced 170 attorneys a year, all of whom are devoted to foreign trade. Almost all know and speak the English and French languages fluently. In contrast, in North Carolina alone, we are producing more than 400 lawyers a year. In Washington D.C., there is one attorney for every 550 inhabitants. Things are so bad that lawyers are suing lawyers with the assistance of lawyers.

The mere language of the lawyer – the legalese – is very difficult to understand. The whereases, arcane phrases and Latin words add to the confusion. Let me illustrate by sharing a simple lease a lawyer recently drew up for me.

“Witnesseth, that the said lessor for and in consideration of the sum of (blank), and also the covenants, conditions, and agreements herein contained, and on the part of the lessee to be paid, kept and performed, and for no other consideration except as herein expressed, does hereby let and rent to the said lessee and the said lessee has hereby taken as tenant of the lessor, the following described premises…”

What the lawyer wanted to say is somebody is renting a piece of property from somebody for a certain amount. This paragraph is almost a perfect example of the legalese language, which Prof. David Melinkoff, of the University of California at Los Angeles Law School, called “words, unclear, pompous, and dull.”

People are fed up with legalese. The National Bank of Washington, about 10 years ago, rewrote its consumer installment loan contracts in everyday English. Since then, according to the vice president in the consumer credit department of the Washington bank, the bank has rapidly rewritten all of its consumer contracts. It has received only thanks from its customers. Citibank in New York has done the same. Bank officials are ready to tell you that they haven’t heard of any legal problems since this conversion, although the lawyers of course died a thousand deaths when the bank took up this task.

Somehow bureaucratese and legalese go together. I guess it is because most bureaucrats have legal training. I remember when President Carter was trying to reform the language of the federal regulations which still contains some of the murkiest of legal verbiage. Of course he did not succeed. Every time a state or the federal government tries to pass a law ordering all consumer contracts to be written in understandable language, invariably it becomes the target of attack by the lawyers. The problem is that 41 percent of the nation’s legislatures are members of the legal profession, and they are not about to give in to changing the language and shortchanging their livelihood. In 1939, Fred Rodell, the Yale law professor, wrote in a book titled Woe Unto You, Lawyers  the following: “No segment of the English language in use today is so muddy, so confusing, so hard to pin down to its supposed meaning as the language of the law. It ranges only from the ambiguous to the completely incomprehensible.”

Economist John Kenneth Galbraith, who fought against the jargon of his own profession, echoed that idea when he referred in a televised discussion to “the desire of the lawyer by his peculiar and obscure language, to prove that he is worth his money.”

In fact, lawyers and judges often have trouble understanding the legal jargon of their peers. Lawyers insist their language is special because it is precise. Yet lawsuits arise over the most carefully drawn, legally worded contract and the exact shade of meaning of any law or court decision is argued and challenged by lawyers. Legalese was at its best when President Clinton during his impeachment hearings wondered what “is” is!  David Melinkoff, in his book The Language of The Law, says that “the legal language is not the most precise way. It is the most imprecise way, because it is not common usage.”

In fact, much of the legal language in use today is taken from reprinted legal forms available in “formbooks” hidden in law libraries. “Forms,” says Melinkoff “are the only way lawyers stay in business.” And although forms are used again and again, their language can cause trouble. Melinkoff cited a form drawn up in 1912 whose language was later rejected by the U.S. Supreme Court but still appeared in a 1955 formbook. With the introduction of computers the use of “forms” and templates have been augmented immeasurably.

People seldom bother to read insurance policies, sales contracts, mortgages or leases. The layman “will trust his lawyer – or someone else’s lawyer – that it does mean something… and that there is a good reason for saying it in a way that prevents him from understanding it. Yet why should people not be privileged to understand completely and precisely any written laws that directly concern them, any business documents that they have to sign, any code of rules and restrictions which apply to them and under which they perpetually live?” writes Rodell.

So the saga continues: We produce more lawyers every year. The lawyers perpetuate themselves. They are involved in legislatures making more laws and providing room for more lawyers to interpret their arcane and opaque language. I can foresee America’s next century to be nothing but courtrooms, lawyers and incredibly heavy dockets the business of which primarily is lawyers suing lawyers.

Well, folks, I have been at it for 60 years and I still don’t understand the contracts drawn by my lawyer. I just sign them and hope that his secretary has put the right “formbook” in the computer for the exorbitant charges. I will tackle the “doctorese” language another time!

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*The writer is Adjunct Professor of Psychiatry, University of North Carolina School of Medicine at Chapel Hill, Distinguished Life fellow American Psychiatric Association, Life Member, American Medical Association, Life Member, Southern Medical Association, and Founding Editor and Editor-in-Chief, Wake County Physician Magazine (1995-2012).
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