miércoles, 12 de octubre de 2011

What makes legal language difficult?

One of the main reasons why legal language is sometimes difficult to understand is that it is often very different from ordinary English. This comprises two issues:
(1) The writing conventions are different: sentences often have apparently peculiar structures, punctuation is used insufficiently, foreign phrases are sometimes used instead of English phrases (e.g. inter alia instead of among others), unusual pronouns are employed (the same, the aforesaid, etc), and unusual set phrases are to be found (null and void, all and sundry).
(2) A large number of difficult words and phrases are used. These fall into four categories, brief details of which are given below.

Legal terms of art

Legal terms of art are technical words and phrases that have precise and fixed legal meanings and which cannot usually be replaced by other words. Some of these will be familiar to the layperson (e.g. patent, share, royalty). Others are generally only known to lawyers (e.g. bailment, abatement).

Legal jargon

Terms of art should be differentiated from legal jargon. Legal jargon comprises words used by lawyers, which are difficult for non-lawyers to understand. Jargon words range from near-slang to almost technically precise words. Well-known examples of jargon include boilerplate clause and corporate veil.
Jargon includes a number of archaic words no longer used in ordinary English. These include annul (to declare that something, such as a contract or marriage is no longer legally valid) and bequest (to hand down as an inheritance property other than land).
It also includes certain obscure words which have highly specialised meanings and are therefore not often encountered except in legal documents. Examples include emoluments (a person’s earnings, including salaries, fees, wages, profits and benefits in kind) and provenance (the origin or early history of something).
Jargon words should be replaced by plain language equivalents wherever possible.

Legal meaning may differ from the general meaning
There is also a small group of words that have one meaning as a legal term of art and another meaning in ordinary English. One example is the word distress, which as a legal term of art refers to the seizure of goods as security for the performance of an obligation. In ordinary English it means anxiety, pain or exhaustion.

Here are some further examples:

- Consideration in legal English means an act, forbearance, or promise by one party to a contract that constitutes the price for which the promise of the other party is bought. Consideration is essential to the validity of any contract other than one made by deed. Consideration in ordinary English means; (1) careful thought, (2) a fact taken into account when making a decision, (3) thoughtfulness towards others.
- Construction in legal English means interpretation. ‘To construe’ is the infinitive verb form of the term. Construction in ordinary English means: (1) the action of constructing [e.g. a building]; (2) a building or other structure; (3) the industry of erecting buildings.
- Redemption in legal English means the return or repossession of property offered as security on payment of a mortgage debt or charge. Redemption in ordinary English usually means Christian salvation.
- Tender in legal English means an offer to supply goods or services. Normally a tender must be accepted to create a contract. Tender in ordinary English means: (1) gentle and kind; (2) (of food) easy to cut or chew; (3) (of a part of the body) painful to the touch; (4) young and vulnerable; (5) easily damaged.

Rupert Haigh, Legal English (Second Edition), Routledge Cavendish, 2009.

martes, 4 de enero de 2011

Some writing tips

(1) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
(2) Never use a long word when a short one will do.
(3) If it is possible to cut a word out, always cut it out.
(4) Never use the passive where you can use the active.
(5) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
(6) Break any of these rules sonner than say anything outright barbarous.

George Orwell, Politics and the English language, in Collected Essays, Journalism and Letters of George Orwell, vol. 4, ed. S. Orwell and I. Angus (London: Secker & Warburg, 1968)

viernes, 27 de agosto de 2010

Legal Style

We can hardly improve on Joathan Swift's formulation of style: "proper words in proper places." That focuses on the right level of detail, but in begs questions of propriety. What are proper words? And how do you know where their proper places are?
In judging words and their placement, remember that the character of the writer determines the character of the prose. Even when the subject is as alien from everyday life as the Rule in Shelley's Case, style reveals self as surely as anything else. What you say and how you say it reflects your mental habits and your personality. In trying to write your best, you may strive to proportion one part to another and to the whole, to accent what matters most, to cut out what is useless, and to keep an appropriate tone throughout. But even with these goals in mind, different writers -however skilled- will aproach a topic differently, often quite differently.
Style embodies the message, delivers it for circulation. When style suffers -because of poor organization, sloppy paragraphing, clumsy rhythms, thoughtless jangles, or other befogging lapses- the content also suffers. When style is good, the content benefits.
Though all lawyers pay lip service to the importance of good legal writing, few seem to appreciate the capacity of style to influence results. Listen to Lord Denning, probably the greatest of Britain's judicial stylists:
[Y]ou must cultivate a style [that] commands attention. No matter how sound your reasoning, if it is presented in a dull and turgid setting, your hearers -or your readers- will turn aside. They will not stop t listen. They will flick over the pages. But if it is presented in a lively and attractive setting, they will sit up and take notice. They will listen as if spellbound. They will read you with engrossment.
So convinced was Lord Denning of the importance of style that he attributed the British role in winning World War II as much to Winston Churchill's manner of speaking and writing as to Churchill's strategy of intelligence.
For the sake of lesser battles, you need guidance to develop an effective legal style. As used here, the phrase legal style refers generally to expository prose about legal subject, whether in the form of persuasion, narration, description, or analysis. Most forms of legal writing fall within those realms: judicial opinions, advocacy, scholarly commentary, opinion letters, and other writing in and about law. Legal drafting -for instance, of legislation, rules and contracts- requires separate treatment and has received it in some excellent works.
The chief aim of style is clarity. But achieving clarity is only the first step; much remains -brevity, for example, and accuracy. Variety, elegance, imagination, force, and wit can make your prose interesting as well as clear. Often you must do more than simply communicate; you must persuade or even delight.
Don't confuse the negative with the positive virtues of writing: avoiding grammatical and rhetorical gaffes won't make you an exemplary stylist. Despite what some writing texts might have you believe, there are no real formulas for a good prose style. Removing needless passive-voice verbs, keeping sentences short, and using "action" verbs usually improve a piece of writing, but they still may not result in a good style.
Everything hangs on context and purpose. We value simplicity, but writing as simply as possible does not always mean writing simply. Complicated language occasionally proves unavoidable. Take the legislative jungle that is in the tax code: "It can never be made simple, but we can try to avoid making it needlessly complex." We can try to say it in plain language.
But what is "plan language"? I define it as the idiomatic and grammatical use of language that most effectively presents ideas to the reader. By that definition, plain language may be, in some sense, unplain. Who would call Immanuel Kant's categorigal imperative plain, despite the seeming simplicity of the words? "Act as if the maxim on which you act were to become, through your will, a universal law." On the other hand, who would volunteer to simplify it?
Still, most of us aren't framing Kantian thoughts. We should stick to a plain approach. Our age prefers it.

Gardner, Bryan A., Gardner on Language and Writing, 1st ed., pp. 39-40