[HPFGU-OTChatter] Re: Legalese: (Was Run-on sentences)

[elfundeb]

Carol responds:
Just for clarification, I didn't write this sentence. I found it online. I
couldn't have invented it. I don't speak legalese. I could probably have
found a better (or, rather, a worse) example, but I didn't want to take the
time.

Debbie:
I didn't mean to create the impression you wrote the original.  My lack of
precision was at fault. But it looks like a procedural rule that is meant to
be read and applied by the lawyers representing the parties in a lawsuit.

Carol responds:
While I agree that many examples of legalese are less clear and less concise
than this one, I disagree that it's "quite clear and concise." Clarity and
readability are essentially the same thing, or, at least, clarity is the
primary and most important element of readability. I think you mean that the
legalese is necessary for *precision* as opposed to clarity. The lawyers who
formulate these contracts want their meaning to be unmistakable *by other
lawyers.*

Debbie:
I'm not sure I would characterize the language used in that snippet as
legalese.  The sample uses no words whose meanings (as used in the
snippet) can't be found in an ordinary dictionary.  And it is consise; I
can't think of any way to pack in as much meaning with fewer words.

Carol responds:
Jargon is the whole problem. We shouldn't need a definitions section. That
was why I reworded "subpoenaed for the taking of a deposition" as
"subpoenaed to testify under oath," which reflects my (undoubtedly faulty)
understanding of what a deposition is.

Debbie:
The purpose of a definitions section is to make sure that everyone agrees on
the meaning of terms used in the document.  Too many words are susceptible
to more than one meaning, or one of the parties may have a faulty
understanding of the actual meaning.  Including a definitions section is
intended to clear up that ambiguity.

I think jargon is unavoidable, and useful.  If, for example, my doctor was
explaining a disease to me, I would expect him/her to use medically
appropriate terms.  I would want them explained, but I would want to use
accurate terminology myself.

Carol responds:
My concern, in contrast, is intelligibility to the average person on the
street, the nonslawyers who so often sign contracts without a clue as to
what they are signing.

Debbie:
This is a different problem.  People need to read contracts before they sign
them, and they need to ask about anything they don't understand.  I insist
on reading anything I'm asked to sign, and I don't take people's word for
what it says.  Many people don't want to be bothered to understand the
concepts that underlie the documents they are signing, and it's reached the
point where documents are pushed under people's noses along with a pen as if
they are *expected* to sign them without reading them.  At the closing of my
most recent house purchase (which really wasn't that recent) one of the real
estate agents expressed exasperation because all the parties insisted on
reading every document before signing, and actually asked questions about
the purpose and effect of each one.  In fact, everyone should do this, and
good lawyers make sure their clients read and understand the documents.

Carol:
Homebuyers wouldn't need legal help if contracts were written in plain
English.

Debbie:
What is wrong with seeking appropriate professional assistance?  Laypersons
aren't experts on the law, or in writing contracts.  I wouldn't diagnose my
own illnesses, or repair my own car.  I wouldn't even draft my own will.  I
hired a trusts & estates lawyer who explained what the law allows me to do,
what the consequences are of different options, and what I would need to do
to make the will legally effective, and I hired a lawyer when I purchased my
house. Laypersons need advice on what steps need to be taken (recording,
etc.) to make the sale effective and to make sure there are not surprises
(such as withholding on sale proceeds).

I don't disagree that some contracts and statutes are badly written, but
that's a function of the writing skills of the drafter.

Carol:
I just want to know what the sentence I quoted *means* in plain English,
which is why I asked for a translation. Can you find a compromise that a
lawyer would approve of (precise and complete, covering all bases) but which
is simultaneously clear to a layperson?

Debbie:
Here's the best I can do at a plain English translation:

"If an organization that is not a party to this suit is served with a order
of the court directing the organization to give out-of-court testimony under
oath, the organization shall designate one or more officers, directors or
other responsible person, who consent to testify on behalf of the
organization, and shall designate the matters on which each person will
testify."

A deposition is testimony given by a witness under oath, but outside of
court. Parties to litigation will want to take depositions of the other
party's witnesses before trial to discover what they are likely to testify
to at trial. Usually, if not always, a verbatim transcript is prepared.  At
trial they can be used on cross-examination to impeach a witness whose trial
testimony is different than what the person said in the deposition.
Sometimes they can be admitted as evidence if the witness is unavailable.

Further affiant sayeth not.  (Translation: I have said all I have to say.)

Debbie


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