Legalese: (Was Run-on sentences)

[Carol]

Carol earlier:
> 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:
Actually, as I tried to post in a long and detailed response to Potioncat, it's part of the standard format for a subpoena used (with slight variations) by a variety of U.S. courts. And to answer Potioncat's question in brief, a subpoena is addressed to the person or organization that receives it. The quoted section is preceded by about four sentences (often with boxes that may or may not be checked), all of which begin (rather terrifyingly) with "YOU ARE COMMANDED"  in capital letters. So the person being addressed is the subpoenaed citizen, not a lawyer.

Here's a link to a typical subpoena containing the quoted passage:

http://www.dccourts.gov/dccourts/docs/civil/subpoena.pdf

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:
As I said, I could have chosen a better example, and I've already attempted to make it clearer and more concise (using "you," which is used repeatedly elsewhere in the subpoena, so I see no reason not to use it here).

Maybe you could find us a better example of legalese, preferably a contract of some sort that an ordinary person would have to sign. (BTW, today I was *made* to initial a new portion of my lease agreement that specifies that I have to pay a certain amount per item if I don't clean specified items before I move out. I should have protested that I've already signed the lease and these forms should not be presented after the fact, but I just had a run-in with the manager over their decision to inconvenience everyone by paving the parking lot and not giving us anywhere else to park. I guess my only recourse is to find another place to live after my lease expires. Idiot me; I should have stood up for my rights, but I didn't know what to say!
> 
Carol earlier:
> 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.

Carol:
I'm aware of the purpose of a definitions section, but it wouldn't be needed if the contract were worded unambiguously in plain English in the first place. 

Debbie: 
> 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:
I think I said (but maybe it was in the post I lost!) that jargon (gobbledygook) is different from legitimate technical terms, which, of course, need to be defined for most lay people. For example, if a patient is diagnosed with herpes zoster, he might panic if he's not told that it's not what we think of as herpes but shingles, a very painful condition but at least not one that a man like my father (who suffered from it) would be ashamed of.

But jargon is *needlessly* complicated language. Policemen are fond of saying something like, "The officer discharged his firearm" when they mean "the policeman fired his revolver." Weathermen talk about "precipitation in the form of rain" when they mean simply "rain" or a "an emergency weather situation" when they mean a flood or hurricane. I don't know why jargon has proliferated in the last few decades, but maybe it's for the same reason that legal and government documents are still obscurely worded. The lawyers and politicians want documents that only they can understand; the policemen want to join the club and sound "sophisticated," too, and the weathermen want to sound like scientists, another exclusive "club."
> 
Carol earlier:
> 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:
But a person buying a house or leasing an apartment shouldn't need to have a lawyer present--and shouldn't be pressured to sign a ten- or fifteen-page document without being given the time to do so. And the document should be worded so that taking the time to read it pays off, meaning that the person actually *understands* the document. It's not a different problem, but it may be an extension of the problem. It's certainly an application of the problem in real life.

Another, less pressing but still important, application of the problem is the language of the propositions (initiatives and referenda) that citizens vote on in elections. I'm quite sure that most people, even those who show up at the polls, don't take the time to read the propositions, but those of us who do should be able to understand them without getting a headache. And I don't mean just people like me who have a PhD in English. I mean people with a high school diploma or even an eight-grade education who are out there voting on these propositions without necessarily understanding them.
> 
> Carol:
> Homebuyers wouldn't need legal help if contracts were written in plain English.
> 
> Debbie:
> What is wrong with seeking appropriate professional assistance?

Carol:
Time? Money? Convenience? People should be able to buy a home or lease an apartment without assistance. I can't afford to hire a lawyer to go with me every time I sign a new lease. I wish I could. Instead, I read or skim the paper shoved in front of me, but I sign it because I have to. I can't afford to be thrown out on the street because I've "violated" my lease or have refused to sign it. (If only my sister the lawyer lived next door!)

Debbie:
> Laypersons aren't experts on the law, or in writing contracts. <snip>

Carol:
I'm not saying that laypersons should *write* contracts, only that contracts should be written so that laypersons know what they're signing without the aid of a lawyer, just as they should know the disease they're diagnosed with without the aid of a medical dictionary. I'm not saying that they should heal themselves, either. Of course, we need experts who know more than we do about the law and medicine and even car repair. But we have the right not to be taken advantage of by unscrupulous real estate companies, leasing agencies, doctors, and mechanics. 

Plain English is our right and our friend. Leave technical terms to the specialists, and let jargon (pretentious, useless, pseudotechnical language) die a painful death.

Deb:
> 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 think it's a "function" of the delusion we're under that contracts should be long, boring, and unintelligible. Reading them should not be an exercise in futility; it should be useful and productive. If the writers were encouraged to use plain English, including, wherever possible, the active voice, we wouldn't be having this discussions.
> 
> 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."

Carol:
I give up, then. That's neither concise nor clear, it's not plain English, and it's very similar to but longer than the original wording. And, as I said, the subpoena is addressed to "you," so I see no reason why the organization that isn't party to the suit should not also be addressed as "you." I still prefer my version.

Debbie: 
> 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. 

Carol:
Okay, I understand the first sentence. But I thought that depositions were taken by lawyers, not by the "parties to litigation" (people or organizations involved in the lawsuit).

Debbie:
Usually, if not always, a verbatim transcript is prepared. 

Carol:
Do you mean that the lawyer who takes the deposition tape records it and a clerk or assistant types up the transcript from the tape? (Passive voice again. who prepares it and how?)

Debbie:
> 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.

Carol:
I thought "impeach" meant to put an elected official on trial to determine whether he should be removed from office. How are you using it here? (I could look it up, of course, but I'm hoping to get you to put it in plain English as I did with "parties to litigation." I have a feeling that you're so used to legalese that it reads like plain English to you.

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

Carol:
Oh, dear. I was hoping for a response to this post. Oh, well. At least you quoted a beautiful example of traditional legalese and translated it into plain English. i appreciate that.

Carol, who thinks that we should all say what we mean and mean what we say, preferably without resorting to specialized vocabularies and definitely without resorting to jargon
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