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Sunday, September 1, 2002

Column: How to Talk Like a Lawyer

Memo to All New Lawyers

Chances are, one of the reasons you went to law school was to learn how to talk like a lawyer. Unfortunately, your idea of talking like a lawyer was based on TV shows in which outrageously attractive lawyers have long flirtations with each other, generally involving the phrase “why counselor, you’re out of order!”

By now, you’ve probably figured out that real lawyers don’t look as good as the TV version, flirting is prohibited, and we don’t go around calling each other “counselor.” But you’ve decided to stick with the profession anyway and now you need to speak – and write – like a lawyer.

Don’t expect this to be easy. Linguistic experts say that legal language is more than a mere collection of jargon or a dialect of English. It is a separate “sublanguage” – distinguished not only by vocabulary but by its own specialized grammar. Take that, counselor!

Herewith (!) a few pointers on talking like a lawyer.

1. Use lots of words

Let’s say your client wants to give an orange to his friend and, owing to his punctilious nature, he asks you to record the gift in writing.

You might be tempted to go for something short and sweet, like: “I give you that orange.”

Ah, the innocence of youth! If you bring a document like that to the partner for review, you’re asking for trouble. Save yourself the scolding and try to make it sound a little more legal. For example, you might say:

“I hereby give you all right, title, and claim to that orange.”

Not bad. But you can do better. In the hands of real expert, the phrase “I give you that orange” can be rendered:

I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectually as I the said A.B. am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise, notwithstanding.

Believe it or not, that paragraph was written (as satire) in 1835 by the Englishman Arthur Symonds. But it remains a brilliant parody of the way lawyers write. Then, as now, lawyers tend to be verbose, loquacious, prolix, sesquipedalian – er, wordy. One reason for this is that we like to pepper our documents with long lists of synonyms.

The lawyer’s habit of using two or three words where one might do dates back to the Renaissance, when English law was a bilingual affair. Officially, judges and lawyers were supposed to conduct business in French, but their clients and everyone else spoke English. Lawyers got into the cautious habit of using English and French synonyms for important phrases so as to ensure that at least one of the terms would be understood. So, while lawyers understood the French devise to mean a testamentary gift, they tacked on the Anglo-Saxon “and bequeath” so that ordinary chaps would get the idea. To this day, “devise and bequeath” remain united in the law. Examples of these joined phrases abound. Consider the following list (French-derived words in italics):

breaking and entering
fit and proper
free and clear
goods and chattels
had and received
peace and quiet
right, title, and interest
will and testament

You see, “Last Will and Testament” could really just be “Last Will” – the “testament” bit being just a French synonym for “will.” Come to think of it, you probably don’t need “last,” since every will is meant to be the last one. Just plain old “Will” would be fine.

Now, don’t get ideas in your head about weeding out these redundancies. In some professions, economy of words is of great value, but not in the law. In law, precision is king. As for brevity – well, the whole idea is null and void.

2. Use big words

Question: if you’re representing the plaintiff in a slip-and-fall case, do you say that your client fell after he left the office and before he got on the bus?

Answer: not if you want to be taken seriously. Only a green and inexperienced lawyer uses words like “after” and “before.” You, on the other hand, might want to say that your client fell subsequent to leaving the office and prior to boarding the bus. There: now you’re cooking.

Legal language is formal-sounding. Linguist Peter Tiersma says that the continued use of formal language by lawyers may serve a “ritual function.” That is, the use of long, Latinate words helps to signal to all parties that the testimony being given, or the document being signed, is meant to have legal effect. That function was important back in the Middle Ages when legal phrases were accorded quasi-magical powers. Today, big words are no longer considered magic, but you still need to have a few rattling around in your sorceror’s toolbox.

So, you should employ (not “use”) fancy words as soon as you commence (not “begin”) to practice law. Notice how the pros do it: the judge tells you that he will take your motion “under submission,” not, “I’ll think about it.” And for your part, make sure that you ask to “approach the bench,” don’t say “can I come over?” In fact, don’t ever “say” anything, always “indicate,” as in “I indicated to my client . . .” or “I indicated to opposing counsel . . .”

If you find yourself referring to a person, place, or thing that has been mentioned before, make sure to throw in a “said” or better yet, “aforesaid.” Why should Mr. Smith purchase Blackacre when he can purchase the “aforesaid Blackacre?” These superfluous words came into usage as the English equivalents of the Latin phrases dictus (said) and predictus (aforesaid) that were used to identify parties in medieval pleadings: dictus Johannes being today’s “the said John.”

Sadly, these phrases were no more helpful in the thirteenth century than they are today – either there is only one Johannes, in which case the “said” is unnecessary, or there is more than one Johannes, in which case the “said” doesn’t really clear things up. That’s why you need to learn to use defined terms, as we’ll see below.

3. Define your terms

People who practice law (collectively, “lawyers”) have a tendency to insert parenthetical phrases into documents defining certain key terms (the “defined terms”).

Let’s say you’re working on a lawsuit involving Chuckles the Clown. Would you want to risk the obvious ambiguity of writing “Chuckles” in your brief – when that name could refer to Chuckles the Doctor, Chuckles the Accountant, or even Chuckles the Podiatrist? Or would you be so brazenly reckless as to refer simply to “the clown,” without specifying whether you mean Chuckles, Bozo, Flopsy, or another one of their colleagues?

No, when you find yourself in that position, you’ll do the right thing. You will define your client: “Chuckles, a circus performer noted for his orange hair and bulbous nose (hereinafter ‘Chuckles the Clown’),” and you will stick to your defined term.

Legal writing expert Bryan Garner points out that lawyers might just be a little too enamored of defined terms: “[t]here’s no reason to write former Secretary of State Madeleine Albright (“Ms. Albright”) if there’s only one Albright involved in the discussion.” Fair enough, but when you find yourself in a state of uncertainty (“doubt”) use defined terms.

4. Get some rhythm

Learn to love alliteration. The law if full of phrases that repeat the same initial letter: aid and abet; any and all; assuming arguendo; clear and convincing; have and hold; part and parcel; safe and sound; rest, residue and remainder.

Alliterative phrases hearken back to the law’s origins as an oral tradition. In Anglo-Saxon times, legal acts such as land grants and pleas were spoken formulas that were taught from one generation to the next. As a result, medieval legal phrases were essentially poems, closer to Beowulf than Blumberg.

Today, nobody is required to memorize legal phrases, but it doesn’t hurt to use memorable phrases anyhow. Is it just me, or does everybody get a little kick from the bouncy cadence of a contract that “provides in pertinent part”?

So break out your thesaurus, find some big words, add two or three synonyms for each, throw in a dash of alliteration and – presto – you’ll be talking like a lawyer, counselor.
(This column was originally published in New York Law Journal Magazine in September 2002)

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