On Jun 11, 7:13 am, Alan McKenney <alan_mckenn...@yahoo.com> wrote:
> In legal discussions and (supposedly) legal
> documents one all too frequently runs into
* * *
>"legalese," that is, ridiculously convoluted
> writing, which we tend to assume lawyers have
> invented so we can't understand what we're
> signing (or responding to) and instead have to
> hire expensive lawyers to interpret it.
Nothing that sinister. Actually, many of the legal jargon words are terms of art with specific meanings that could not be fully expressed in lay terms without even more convoluted prose. And many of those terms go way back, to when they were in more common use, not just in a legal context, but have since gone out of fashion in ordinary speech; much the way English gentlemen used to wear gowns and lace collars and powdered wigs which are now seen on men nowhere but in an English courtroom. Or, frex, in Xian clerical vestments, or for that matter the frock coats and streimels (wide fur-trimmed hats) that some ultra-observant Hassidic Jews wear, all of which had a parallel sort of arrested fashion development hundreds of years ago.
The barons who got King John to sign the Magna Carta had a very good idea of the meaning of Feudal French and Latin terms like seisin, replevin, voir dire, every kind of fee from fee simple to fee tail to fee with cherries on top, and so forth. Likewise, a modern stock broker or securities analyst is at least as conversant with the apparent gobbledygook of things like options, puts, calls, short selling, long selling, deriviatives, LLCs, corporations, and so forth, not because he reads law books for fun, but because those are terms of art in his business that just happen to have specific legal meanings in that context.
Apart from the necessary jargon, though, I think you're complaining about convoluted sentence structure. Quoting from a MLM newsgroup post is a little bit hitting below the belt, since probably most of the posters here (I know for sure that includes me) don't agonize for hours over the exact wording and commit multiple revisions of their posts to get exactly the right wording before hitting "send". OTOH, that's exactly what lawyers typically do before filing a brief in court or submitting a contract for signature to the parties to a deal. So I wouldn't draw any conclusions about the way lawyers usually write, from the excerpt you quoted -- for all I know, that poster may write that way all the time, or he may just find it a fun kind of hobby to do so on MLM and stretch his vocabulary and syntax muscles.
To the extent convoluted legal phraseology survives, I still feel as I did in an earlier thread here on this subject: the main motivators are intertia, and caution.
Inertia says, why should I re-invent the wheel when I have a perfectly functional one that has been handed down to me for 2 hundred years or more? Even if it contains lots of "whereases" and "heretofores" and maybe even those funny "S"es that look like "F"s? Just change the names and dates, and go with it; it worked before, so it ought to work again; just dust it off and re-use it.
Then, caution segues the lawyer from that latter observation to the speculation of what might happen if he DOES change the language to tidy it up a bit and remove the lace trim: what if a court decides that he meant to change the substantial meaning of the clause, and not just pretty up its language in more modern garb? That can and does happen, and if it does, disaster can loom, even if things turn out OK for his interpretation in the end, because he and his client won't get to Happyland until lots of money and effort has been spent on litigation to establish exactly what the new phrasing meant. All the more reason to stick with the old language, if that snippet of operative language has already been the subject of a published case with a binding judicial opinion of what it means.
> 1. Does this sort of writing have a (legitimate)
> place or function in the legal world? I was under
> the impression that it did not, but I could
> be wrong.
Yes and no; see above. I would argue that caution is a very legitimate, even necessary concern; inertia a bit less so but still arguably OK because it saves time and money for the lawyers (even if not for the foax who have to interpret what they wrote), but that making up brand new florid language from whole cloth where no prior form is used for a model, is inexcusable.
> 2. Is this sort of writing being taught in law schools
> or passed on to law firm associates? Or is it just
> something that a few legal types pick up on their
> own?
Absolutely not. AFAIK any good law school and most of the best lawyers advocate plain-English usage where that can be done without sacrificing legal precision, since unnecessarily florid language actually detracts from such precision.
> I'm thinking of the US If the answer(s) depend upon
> the (U.S.) State, that would be interesting
> to know, too.
There is no USA state I know of that requires lawyers to write and speak, or dress, as if they were 16th century barons overseeing their estates or going to a ball. To the extent some still do, IMO it's either because they think it's fun, they're putting on airs, or they don't know any better. "Businesslike modern" is the preferred order of the day.
--
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Mike Jacobs
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