3 Reasons Why Some Lawyers Continue to Write in Archaic Legalese
Archaic language by a (hopefully fictional) obnoxious lawyer:
Know all the persons by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit, and use whatever in, of, and concerning this chattel, known as an orange, or Citrus orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice, for his own use and behoof, to himself and his heirs, in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints, or conditions whatsoever, any and all prior deeds, transfers, or other documents whatsoever, now or anywhere made, to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.
"I give you this orange." (From A Tech Lawyer)
While I've never seen a legal document that comes close to the level of obnoxiousness as the "I give you this orange" example above, I've seen many contracts that are so overly written and archaic that it actually makes me a cringe a little to be part of the same profession as the authors of those documents. Witnesseth, herein, whosoever, and aforementioned are words that are never used in modern speech, so why do attorneys continue to use these antiquated terms? Here's my best guess:
Law school is hard. The briefs, the hundreds of cases to read, the memos, the papers--and on and on. And then there's the Bar Exam, an exam which is like none other I've ever attempted. It's difficult to become an attorney--it's not a profession that can be accomplished on a whim. Trust me, I know.
So given everything that we have to learn, read, study, analyze, and test in order to become a licensed attorney, it's understandable that a little ego can creep in. I wouldn't consider it acceptable, but I would consider the ego to be understandable. So just like a fraternity with a secret code, some attorneys think it showcases their knowledge and prestige to use words like "hereinbefore" to say "before this point." Perhaps these attorneys think it will show off their superior writing skills or knowledge to write in unreadable jargon, but to me it does the exact opposite. My thinking is that using words like "therewith" and "henceforth" shows that the attorney isn't considerate enough to appreciate modernity and what clients actually want to see in their contracts. It's not necessary to write in secret code to show people you're smart; writing a well-drafted contract using only modern, clear, and concise language does that all on its own.
There's a secret among transactional lawyers: a contract is rarely a new creation. Most contracts, no matter how specialized the content, are drafted from templates or another document with similar subject matter. So when an attorney at a law firm is tasked with drafting a prenuptial agreement, lease-back agreement, or employment contract, many times he will turn to his database and start amended an already-written contract. This isn't lazy; this is smart. Many times when I'm drafting a contract, I'll run into provisions that I should incorporate into my document by researching similar contracts.
The laziness comes in when the already-written contract is full of legalese and instead of re-writing, the contract passes on from one generation to the next without ever inking out the outdated terms.
I see this all the time, and it goes without saying that to re-use a contract for convenience sake rather than putting forward what is the best product for your client doesn't exactly speak of excellence. Just as with the ego, this behavior is understandable, but for me and my clients, it is not acceptable.
Law schools and lawyers have made a recent push to do away with legalese. My first year legal writing professor would flunk us if we ever tried to make ourselves sound "lawyer-like" by using old English words. Same thing goes with any of the corporate drafting professors I had. Their philosophy on writing is one that I share: a readable contract is a better contract. Kenneth Adams, who is a celebrity among transactional lawyers, puts it this way: " ...traditional contract legalese is a mess. It’s marked by the absence of conventions . . . . and misbegotten conventions." (Adams on Contract Drafting)
Maybe there are some lawyers who simply just don't care that their contract is full of words that date back to the 1500s. If it works, don't try to fix it, and don't try to make something out of nothing, right? Well, I say wrong. That's almost the equivalent of walking around with a cell phone in a bag or carrying quarters for the payphone. If we make changes in other areas of our lives, then shouldn't our writing do the same?
It could be argued that the lawyer doesn't care because her client doesn't care. After all, as the lawyer, isn't she supposed to be the picky one? Yes, transactional lawyers should be sleuths for details. But, to me, being indifferent to using language that isn't recognized by any modern spellcheck is not serving your client with excellence.
IN WITNESS WHEREOF, Karen Cockrill has caused this blog post to be executed as of the date first written above.