Legalese: (Was Run-on sentences)
Carol
justcarol67 at yahoo.com
Thu Apr 9 20:42:35 UTC 2009
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> Ali:
> I don't understand. If you're all right with a doctor using "legitimate technical terms," then why is it not all right for a lawyer to use them? <snip>
Carol responds:
A doctor would use legitimate technical terms in communicating with other doctors, nurses, etc. When he's communicating with a patient, he might use the technical name of the disease or condition but he'd also give the common name, if any, and explain the symptoms, treatment, and, if applicable, the patient's life expectancy (plain English for "prognosis") in clear and simple terms. He's also, I hope (though too often it's not the case) use his best bedside manner. (Read "he or she" for all the masculine pronouns here!)
A lawyer has or should have the same obligation to his or her client--make the client's obligations and all possible outcomes of the suit or trial as clear and simple as possible. And that entails speaking to the client in plain English and defining any unavoidable legal terms. (For example, I learned a long time ago what a writ of habeas corpus is but I've forgotten everything except the literal Latin translation, the scary-sounding "you have the body.")
Of course, lawyers and judges can communicate with one another in legalese, but they should remember that legalese is unintelligible to the average person. And, again, there's a difference between legitimate and unavoidable technical terms (which need to be defined for the layperson) and just plain jargon, which is unavoidable but easy to fall into for people who don't care about clarity and conciseness (not to mention grace, which I don't suppose a lawyer or doctor would consider though, surprisingly, some historians and scientists who write for the general public do value that quality).
Ali:
It's about precision. Contracts/legal documents pertain to people's lives, and I firmly believe in precision of language when it concerns something important.
Carol:
But surely precision is compatible with intelligibility. Why not have both?
Ali:
> On top of that, trying to rewrite jargon into "plain English" would just result in something significantly longer, especially if you were unwilling to give up precision.
Carol:
Not necessarily. Passive voice is notably *imprecise* because it doesn't specify the doer of the action. It also generally results in circumlocution, which is both wordy and imprecise. And if you don't agree that legalese does just that, how about bureaucratese?
Ali:
<snip> I value precision far more than my ability to understand the document (because had I not understood the document, you can bet I would've been asking questions).
Carol:
As I said, precision and intelligibility are not incompatible qualities. In fact, the goal of good writing (in plain English) is to achieve both goals simultaneously. And by plain English, I don't mean one- and two-syllable words. I mean clear, direct statements, preferably in the active voice, using words that the average person with a high school education will have no difficulty understanding (and free of grammatical errors, typos, and any other sort of error). (This post is, I hope, and example of that sort of writing--except that it may contain typos. <smile>)
>
> Like Deb said, a badly written document is the fault of the person writing it, but otherwise, why knock precision?
Carol:
I'm not knocking precision. I'm knocking wordiness, indirectness, jargon and other qualities of bad writing that interfere with intelligibility.
Here's an example of jargon (not legalese but educationalese) from a handout for class I once took in Reading Education. (I now understand why I don't recall a single thing I "learned" in that class:
"Inferential comprehension [is] demonstrated when [a] student uses the ideas and information explicitly stated in a selection, his intuition, and his personal experience as a basis for conjectures and hypotheses. Inferences drawn may be either convergent or divergent in nature and [the] student may or may not be asked to verbalize the rationale underlying his inferences."
I would rewrite this egregious passage more or less like this:
"A student demonstrates inferential comprehension when he forms conjectures and hypotheses by combining the information explicitly stated in the reading material with his intuition and personal experience. The inferences he draws need not necessarily follow a logical sequence [or whatever "convergent" and "divergent" mean], and the student may or may not be asked to state the reasoning behind his assumptions."
Sidenote: It's almost never necessary to say "in nature" or "in shape" or "in color" as these phrases are redundant and self-evident.
Ali:
> We don't say anything about economists for throwing around terms like CPI, GDP, supply and demand, etc because those terms have come to be more well known, but there seems to be altogether too much willingness to mock legalese (because lawyers seems to have become the butt of jokes in America).
Carol:
I'm not mocking legalese or making jokes about it. I have the greatest respect for reputable lawyers, my sister among them. Nor is legalese the only example of the problems that jargon in any form causes for the general public (although contracts and ballot propositions do affect us directly even if we don't vote or don't read them). Just because a form or phrase is traditional in the legal field or any other doesn't mean that it shouldn't be questioned. Nor are lawyers the worst offenders. Sociological jargon has penetrated deeply into the American consciousness. Local newscasters now speak of traffic accidents causing "issues" for drivers. Weathermen (calling themselves "meteorologists" whether or not they have a degree in meteorology) and policemen are also prone to jargon. So are teachers in many fields. (Try reading an article in a nursing education journal, for example.)
Ali:
> What's so great about plain English anyway? It's ridiculously imprecise. It's like the difference between using weights and ratios to bake instead of volume. One is significantly better (the weights/ratio, in case you can't tell) than the other, but the other is somewhat more convenient so we stick with it because it usually works.
Carol:
How so? Maybe we're defining plain English differently. I'm defining it as ordinary English devoid of slang, jargon, clichés, euphemisms, circumlocutions, and wordy constructions like "due to the fact that" for "because," in combination with clear, direct statements in the active voice--the kind of English that I strive for when I'm editing a nonfiction work. Good writing is not only clear and concise but precise as well. Those qualities, as I've already stated twice, are not mutually exclusive. Good prose is also coherent, concrete--a trait conspicuously lacking in legalese, bureaucratese, educationalese, medicalese, and all the other jargons we're exposed to--and correct [in the sense of grammatically and factually correct as well as correctly spelled and punctuated]. (Ideally, good prose writing, whether fiction or nonfiction, is also colorful and graceful--not strained or overly descriptive or clichéd--but, of course, we're not looking for color or grace in the utilitarian prose of legal documents or medical journals or treaties.)
>
> Carol, please don't read any of this as an attack in any way; I am really trying to understand your point, mainly because it is so foreign a thought to me, but I'm not quite sure of your distinction between plain English vs jargon vs specialized language. Where's the line? And how do we maintain precision but still not make completely unwieldy documents that absolutely no one (including lawyers) will read? <snip>
Carol:
I hope that I've made my meaning clear in this post. If not, I guess we'll have to agree to disagree. However, it's interesting that many scientists (not Stephen Hawking!) manage to escape the shackles of scientific terminology and write beautiful books for the general public. They don't sacrifice precision for intelligibility. They manage both, sometimes admirably. I don't expect lawyers (and doctors and businesspeople and politicians) to write beautifully, at least not in official documents, but surely they can write clearly and concisely without sacrificing precision. (Actually, businesspeople and bureaucrats could do with a great deal more precision!)
Carol, who thinks that your goal and mine, far from being incompatible, are actually mutually desirable
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