RECENT
DEVELOPMENTS AND ADDITIONS TO LEGAL LANGUAGE
[last
updated September 21,
2011]
The items below are new, others I
recently
discovered. I welcome any comments or other suggestions.
You can
email me at Peter.Tiersma@lls.edu.
Acknowledgments
Professor David Mellinkoff died the
last day of
this past century: December 31, 1999. He was educated at Stanford
University and Harvard Law School and was admitted to the California
Bar in
1939. He told me once that his experiences in the army during
World War
II, which brought him into contact with other languages, stirred his
interest in
language in general. After the war he worked for many years as a
lawyer
in Beverly Hills. He quit his job and researched the language of
the law
for several years, living mainly from savings. After his book, The
Language of the Law , was published in 1963, he accepted a position
at
U.C.L.A. law school, where he remained until his retirement.
Though he
did not live to see the 21st century, his work will have a lasting
impact on
those interested in English legal language. See also: Myrna
Oliver, Obituaries:
David Mellinkoff; Attorney Advocated Plain English. L.A. Times,
Jan. 4,
2000, at A17.
My book is almost entirely about
legal
English. For those interested in other
legal languages, especially German and French, see Heikki S. Mattila, Comparative Legal Linguistics
(Christopher Goddard, trans. 2006) and the references contained therein.
Introduction
Chapter 1:
Celts,
Anglo-Saxons, and Danes
On the
history of legal languages, see my chapter in the Oxford Handbook of
Language and Law (available in draft on SSRN).
Some
additional
legal documents from this period are now available on this site under legal texts.
p. 9--regarding Celtic poets "singing out" the law: see Robin
Chapman Stacey, Dark Speech:
Performance of Law in Early Ireland (Philadelphia: University of
Pennsylvania Press, 2008).
Singing
law
was apparently also done in ancient Greece before the advent of
writing, as a
means of transmitting the law to an illiterate public. Rosalind
Thomas, Written
in Stone?: Liberty, Equality, Orality, and the Codification of Law,
in Greek
Law in its Political Setting: Justifications not Justice 14 (L.
Foxhall and
A.D.E. Lewis eds.) (Oxford, 1996).
Chapter 2:
The Norman
Conquest and the Rise of French
See legal texts on
this site
for additional Law French documents
The
continuing use of Latin (p. 25)
For additional information on use of
Latin in
the legal system, see Peter R. Macleod, Note, Latin in Legal
Writing: An
Inquiry Into the Use of Latin in the Modern Legal World, 39 B.C. L.
Rev.
235 (1997). This is a study of the use of Latin by three courts
(the
United States Supreme Court and the high courts of California and
Massachusetts). It found that use of Latin has actually been increasing
during
the past half century. The research was limited to 15 common
words and
phrases, however, so it may not give an accurate picture of the overall
use of
Latin. But it does document a clear increase in the frequency of
the
expressions inter alia (among other things), vel non
(or not), sub
silentio (in silence), sua sponte (of its own accord), and ratio
decidendi (reason for decision). What is interesting
about
these results is that the use of Latin for technical terminology seems
to be
stable or declining, as the concepts to which the Latin phrases refer
become
obsolete or are replaced by English. The Latin phrases that are
advancing
in popularity are either nontechnical (such as inter alia) or
have very
acceptable English equivalents (such as “holding” for ratio
decidendi). One reason for the persistence of Latin thus seems to
be that
it lends an air of erudition to one’s writing.
Also worth reading is Isabel Balteiro & Miguel
Angel Campos-Pardillos, A
comparative study of Latinisms in court opinions in the United States
and Spain, 17 Int'l J. Speech, Language, & Law 95-118
(2010). They find that although Latin expressions continue to be
used by both U.S. and Spanish courts, there is not a lot of overlap in
the terms used.
Law French (p.
26)
See also J.H. Baker, The Three
Languages of
the Common Law, 43 McGill L.J. 5 (1998).
Prof. Baker's article is a nice overview of the role
of
French in the English legal system. He points out that by 1179,
the
English and French people in England were so mixed it was hard to tell
them
apart. At the same time, there are no French texts from the
courts from
before the 1250s, a century after the distinction between Normans and
English
disappeared. He concludes: "It is now thought that the currency
of
French in courtly circles in early thirteenth-century England was not a
relic
of conquest but was rather due to its slightly more recent
international
recognition as the language of learning and more recent international
recognition as the language of learning and diplomacy." Id. at
16-17.
Moreover, this French was not Norman
French, but
a hybrid dialect with Picard and Angevin influence. Id. at 17.
Finally, he mentions that oral French
was used
for formal pleading in court until 1731, though unintelligibly, and was
used
for moots in the Inner Temple until 1778. Id. at 20.
Incidentally, another legal language in England was Hebrew. For
details,
see M.T. Chanchy, From Memory to Written Record, at 201-202.
Trilingualism and Code-Switching
(p. 33)
Some
good examples of how the three languages of the law operated in pratice
can be
found in M.T. Chanchy, From Memory to Written Record: England
1066-1307,
at pp. 206-207. Clanchy points out that a message by the king to
a
sheriff in the 13th century might have been spoken originally in
French,
written down in Latin, and later read to the sheriff in English.
Likewise, during a trial the justice's questions were presented to the
jurors
in either French or Latin, the jurors probably answered in English, and
their
verdicts were written down by the court clerk in Latin.
The Increasing Importance of
Writing and
Printing (36)
For more on this topic, see my book, Parchment, Paper, Pixels: Law and the
Technologies of Communication (20)
Prof. Richard Wydick (author of Plain
English
for Lawyers) presents a nice example of a legal event that even today
is
completely oral: the wedding ceremony. Although there is
typically a
written record (a certificate signed by the witnesses and the
officiating
clergyman or government official), what matters is what is said at the
ceremony
itself. See Richard C. Wydick, Review Essay , 7 Scribes
165, 167
(1998-2000) (reviewing this book).
Legal English Throughout the World
(43)
p. 43--The Mayflower Compact was
signed on the
ship while the Pilgrims were en route to the new world, not—as the text
suggests--after they had arrived
For a discussion of how protestants,
including
Puritan groups, desired a plain language code in English around the
time of the
Commonwealth (interregnum) in England, see Assaf Likhovski,
Protestantism and
the Rationalization of English Law: A Variation on a Theme by Weber, 33
Law
& Soc'y Rev. 365 (1999). The article also has a useful
bibliography
on this issue.
p. 46: for more on the influence of
Spanish law
on American law, see Eric B. Kunkel, THE SPANISH LAW OF WATERS IN THE
UNITED
STATES: FROM ALFONSO THE WISE TO THE PRESENT DAY, 32 McGeorge L. Rev.
341
(2001).
For a discussion of the use of
Chinese and English in courts of Hong Kong, see Kwai Hang Ng, “If I
Lie, I Tell You, May Heaven and Earth Destroy Me.” Language and
Legal Consciousness in Hong Kong Bilingual Common Law, 43 Law &
Soc’y Rev. 369 (2009). See also his book, The Common Law in Two Voices: Language,
Law, and the Post-Colonial Dilemma in Hong Kong. Stanford
University Press, 2009.
Chapter
4: Talking
Like a Lawyer
pronunciation and spelling
p. 52--Some people question my
comment that judgment
is a marker of legal language. See, for example, Edward Finegan's
review
of Legal Language in the Journal of Forensic Linguistics 7: 124
(2000),
who states that "dictionaries rank both forms as acceptable." I
completely agree, and mention in the text that spelling with or without
the
middle e is generally acceptable. What is interesting is
that
lawyers are specifically told in law school that only the spelling
without e
is acceptable in legal usage. The L.A. Times reported in the
local news
that it had received a lettter from a lawyer regarding an adverisement
for the
television show Judge Judy that mentioned "Judgement
Day." The word was misspelled, according to the lawyer, who
commented:
"The first thing I remember being told in law school was that the word
'judgment' has only one 'e'." Steve Harvy, Only in L.A.,
L.A.
Times, August 26, 2000, at B4.
Dutch legal language also has words
that
lawyers pronounce differently from the rest of the population,
especially those
ending with the French –oir, as in trattoir, where the –oir it is
normally pronounced "war". Dutch lawyers pronounce such legal
words as "oor", as in requisitoir. See G.C.J.J. van den Bergh,
Recht en Taal: Preadvies 46 (1979). Dutch legal language is also
characterized by overuse of passive constructions and nominal
forms. Id.
at 49. Legal English is thus not unique in this sense.
Prof. Don Brown (emeritus professor
of anthropology, Univ.
of
California, Santa Barbara) informs me that among anthropologists, the
word descendant
was and perhaps still is pronounced to rhyme with ant, just as
lawyers
do with defendant. His suggested explanation is that many
early
experts on kinship at American universities were trained as lawyers.
I have also been told that the
pronunciation of
Latin using English vowels is not just common among the English legal
profession traditionally, but also the Church of England. Can
anyone
confirm this?
Lengthy and complex sentences (p.
55)
A great example of how lawyers try to
anticipate future contingencies and in the process make documents ever
longer
is contained in Shirley L. Kovar, Updating
the No-Contest Clause, 5
Calif.
Trusts and Estates Q. 24 (Fall 1999).
The author discusses some of the problems with
existing no-contest clauses. She takes a seven-line no-contest
clause and
recommends replacing it with one that is 48 lines long in order to deal
with
possible (but generally fairly remote) things that might happen.
The obsession with covering all the
bases and
anticipating ever remote contingencies seems to be far more prevalent
in
Anglo-American law than in the civil law of Europe (based largely on
Roman and
Napoleonic codes). See Claire A. Hill and Christopher King, How
Do
German Contracts Do As Much with Fewer Words?, 79 Chi.-Kent L. Rev.
889
(2004).
p.56: For an update on the studies by
Gustafsson and Hiltunen, see Risto Hiltunen, "Some Syntactic Properties
of
English Law Language": Twenty-Five Years after Gustafsson (1975), in English
in Zigs and Zags (R. Hiltunen et al. eds. 2001).
Gustafsson published one of the first
studies of
the syntax of legal English when she analyzed the British Courts Act of
1971. Hiltunen compares this with samples of five acts issued in
2000. The average sentence has 45.04 words, about 10 less than in
Gustafsson's study. Because the hierarchical structure of
sentences is
spelled out more clearly in modern legislation, longer sentences are
not
necessarily a significant problem. There is also a reduction in
sentence
complexity, with more simple sentences, for instance. Finally,
there are
far fewer medial clauses. In the modern acts, most clauses are
right-branching and just over 10% are medial, while in Gustafsson's
data over
26% of the clauses were medial.
p. 56: French judgments being a
single
sentence: this is still largely true, but see Heikki S. Mattila,
Comparative
Legal Linguistics 85 (Christopher Goddard, trans. 2006).
p. 56: According to Stephen Harris, a
patent
attorney in Tokyo, what is called the "specification" in a patent
application should be written in normal English, preferably with short
and
clear sentences. The "claims" of an application, on the other
hand,
are
written in sentence fragments, many of which are often quite
long. It remains
the case that the claim must be stated in a single sentence with only a
period
at the end (although there can be intervening punctuation, including
semi-colons. See the most recent edition of Herbert F. Schwartz, Patent
Law and Practice 15 (4th ed. 2003) ("The claims can be punctuated
and
laid out in whatever manner the drafter desires, except that there can
be only
period and that must come at the end of the sentence.")
Conjoined phrases and lists of
words
p. 64--Give, devise and
bequeath. Regarding
how lawyers do not, in practice, distinguish these words in any
meaningful way,
consider Estate of Lindner, 149 Cal. Rptr. 331 (Cal. Ct. App.
1978). It
held that although technical words in wills are to be understood in
their
technical sense, especially if a will is drafted by a lawyer, the word bequest
(which many lawyers argue is carefully limited to personal property)
was held
in this case to include a devise of real estate.
Unusual Sentence Structure
p. 65--six lines from
bottom--typo--"usual
sentence structures" should be "unusual" (thanks to Ed Finegan's
review in the Journal of Forensic Linguistics 7: 126 (2000).)
Consider the placement of by him
in this
recent Supreme Court order:
The application for stay of execution of the sentence of death of Alan Willett presented to Justice Thomas and by him referred to the Court is denied.
(Arkansas
Abolitionist
Committee v. Arkansas, 68 U.S.L.W. 3152 (Sept. 8, 1999))
Another example of unusual sentence structure is often found in wills:
"in
this my last will and testament" or "this my will." If
there were a comma after this, it might be marginally
grammatical.
But I have never seen a comma in this position.
Negation (p. 66)
On negation, see Defendant Sick over
Juror's
Coughing Attack, L.A. Times, April 17, 1999, at A-6 (describing how the
jury
foreman in a case in Cardiff, Wales, was reading the verdict of not
guilty when
another juror coughed during the “not”--the judge sentenced the
defendant to two years in prison. He was released after a juror asked
the usher
why the defendant was going to prison if he was not guilty)
Impersonal Constructions
p. 68: (use of "we" and third person
by judges): Justice Stephen Breyer of the United States Supreme Court
recently
used the pronoun "I" in an opinion (stating that "I will
call" a certain decision "case two".) South Central Bell
Telephone Co. v. Alabama, 119 S. Ct. 1180, 1185 (1999). This
usage
caused a "legal frenzy," according to one reporter. Tony Mauro,
Justice's Supreme Use of "I" Sparks a Legal Frenzy , USA
Today, Friday, April 2, 1999, at 11A (also available at 1999 WL
6838657).
According to Vanderbilt University law professor
Barry
Friedman, "The word 'I' leaped out at me. It's like the Wizard of Oz
stepping out from behind the curtain."
Georgetown University law professor Mark Tushnet
also
noticed the first person pronoun and sent a note to Justice Breyer
complaining
that his usage was "nonstandard."
I owe this information to Pearl Goldman, Review of
Peter M.
Tiersma, Legal Language, 24 Legal Studies Forum 721 (2000).
NOTE: Justice Breyer was
apparently aware of the criticism--the final version of the case as
printed in the U.S. Reports uses "we".
While it may be the norm for judges to refer to themselves as the
court
, this can sometimes lead to absurd results when a judge is speaking in
her
personal capacity, as is sometimes the case. Consider one of the
opinions
in the case by Paula Jones accusing President Clinton of sexually
harassing
her. The judge, Susan Webber Wright, dropped a footnote in which
she
starts out by referring to herself as the court and then as the
undersigned but soon shifts to I and me when the
third person
begins to sound silly:
The Court informed the parties that a member of the House Managers who prosecuted the impeachment trial against the President contacted the undersigned in early January of this year to let me know that he was considering calling me as a witness for the impeachment trial. I objected and was never subpoenaed or otherwise asked to testify. Later, a representative of the House Managers requested and, with my permission, received an affidavit concerning the President's deposition from my law clerk, Barry W. Ward, who attended the President's deposition. The Court allowed the parties an opportunity to request that I recuse from deciding the remaining issues in this case because of the House Manager's contact with me or because of Mr. Ward's affidavit, but none did so.
Jones v. Clinton,
36 F. Supp.
2d 1118, 1124 n.11 (E.D. Arkansas 1999).
Use of
"the
court" to refer to the judge also can lead to confusion. In many
American jurisdictions, a judge can hold someone in contempt for
disrupting a
hearing or obstructing justice, without giving the person due process,
but only
if the conduct occurred "in the presence of the court." Some
jurisdictions have interpreted this phrase very broadly, as covering
almost any
activity in the courthouse, and thus apparently viewing "the court"
as the entire institution. Other jurisdictions interpret the
phrase to
mean "in the presence of the judge," requiring that the judge
actually see or hear the conduct in question.
Chapter 5:
The Quest for
Precision
p. 73: the Masculine shall include the Feminine
An interesting recent case where this
principle
was not applied was reported in the Los Angeles Times (Sara Lin, Only
Men
Can Be Flashers, Judge Says, L.A. Times, Oct. 21, 2006, at
B6).
According to Judge Robert Armstrong of Riverside County, California, a
penal
code provision making it illegal for a person to "expose his person"
to someone else did not apply to a woman who exposed her person to a
young man who
was annoying her by playing basketball outside her house.
What's
interesting is that section 7 of the Calif. Penal Code specifically
states that
"words used in the masculine gender include the feminine and the
neuter." Did the prosecutors not know about this provision and
fail
to mention it to the judge? The news report also mentions that
the judge
was persuaded by the fact that in other parts of the code, the phrase
"he
or she" was used, creating an implication that the statute on indecent
exposure was meant to apply only to men. This is a common type of
legal
reasoning, but the more likely explanation is that more recent statutes
use
"he or she" and the older ones (perhaps including indecent exposure)
use only "he" and expect users to apply the maxim that the masculine
includes the feminine. I would expect an appeal!
Blackstone, at 1 Commentaries 88 ( 3) (1978 Garland ed),
mentioned that a
statute provided that anyone convicted of stealing of horses should not
have
benefit of clergy; courts refused to apply it to someone who stole just
one
horse. This may help explain maxims such as those stating that
the
singular includes the plural and vice versa.
p. 74: Passives and Nominalizations
For a discussion of how the Supreme
Court uses
devices like the passive voice and nominalizations in its opinions, see
Laura
E. Little, Hiding With Words: Obfuscation, Avoidance, And Federal
Jurisdiction Opinions, 46 UCLA L. Rev. 75 (1998).
p. 81: the Tension between
Flexibility and
Precision
Regarding
the interpretation
of lists of words, consider the constitutional language for
impeachment
(treason, bribery, and other high crimes and misdemeanors).
Arguably,
that the catch-all at the end (other high crimes and misdemeanors)
cannot be
understood without looking at the items preceding it, both of which
relate to
serious crimes against democracy and the functioning of
government.
Chapter 6:
The Legal Lexicon
p. 86--ye olde wine shoppe is
probably
not so well described as "archaic morphology", but rather just an
antiquated phrase. Later on the page I describe a different ye
as
the plural of you. More accurate would be to call it the
plural
of thou. Thanks to Krishna Ramaraju for pointing this
out.
p. 94-5 (vagueness of the term herein):
A
solution to this problem is to define the term herein, as well
as hereunder, to refer only "to this Agreement as a whole and
not to
any
individual article, section, subsection or other part of this
Agreement." See Model Loan Agreement, from a text called
"Documents for International Business and Economics."
p. 97—lawyers justifying their
monopoly. Another believer in the conspiracy theory:
Steven Stark, Why Lawyers Can't Write, 97 Harv. L. Rev. 1389, 1389
(1984)
("One need not be a Marxist to understand that jargon helps
professionals
to convince the world of their occupational importance, which leads to
payment
for service.")
Linguistic Creativity
p. 97--some other examples of
creative new
legal language are those dealing with new ways of forming agreements or
licenses relating to software and other computer-related
activities.
Consider the terms
See Specht v.
Netscape
Communications Co., 105 F. Supp. 2d 585 (S.D.N.Y. 2001).
Consider also all the recent coinage of terms using the prefix e-, as
in
e-commerce, e-business, and so forth. There are a number that are
fairly
distinctly legal, including e-contract, e-signature, and
e-postmark. No
doubt other such coinages are not far behind. Will we soon have
e-wills
and an e-constitution???
p. 98--for more on words formed with
the
addition of -ee, see Chris Barker, Episodic -ee in English: A
Thematic Role
Constraint on New Word Formation, 74 Language 695 (1998). The
process
may be more common in ordinary English than is suggested in the text.
Formal and ritualistic language
p. 100--on the usefulness of formal
language as
signaling that an event is important, see discussion below on plain
language
class settlement notices.
p. 103--lawyerly obsession with the
word advise
to mean "said": When Kenneth Starr's lawyers made notes of
their interviews with Monica Lewinsky (regarding her relationship with
President Clinton), they repeatedly noted that LEWINSKY advised
this or
that, meaning said. For example: "LEWINSKY advised that
she
includes kissing when she uses the term 'sexual contact.' ...
LEWINSKY
advised that on January 7,
1996, CLINTON called LEWINSKY for the first time at
home and at her office." Phil Kuntz (ed.), The Starr Report: The
Evidence 37 (1998).
Jargon, Argot, and Technical Terms
(p. 106)
A good example of the difference
between legal
jargon and technical terms, as well as the difficulty in drawing clear
lines
between these categories, is the set of words that includes bankrupt,
insolvent, and judgment-proof . Although not always
used
carefully, bankrupt means that you have been declared unable to
pay your
debts by a bankruptcy court, and is thus clearly a technical
term. The
word judgment-proof means that even if I win a judgment against
you, you
will almost certainly not be able it; this is best categorized as legal
jargon
rather than a term of art. Insolvent falls somewhere in
between,
referring to someone who cannot pay her debts as they become due, or
someone
whose debts are greater than her assets.
Other exampes of legal jargon are good law or bad law,
which in
the legal arena means that a precedent has never been overruled (in the
case of
good law) or that it has been disapproved (another example of
jargon),
in which case it is bad law. Another nice illustration
of jargon
is judge-shopping and its close cousin, forum-shopping.
See also Glenn
Edward Murray and Gary Muldoon, Criminal
Law Slanguage of New York (Gould
Publications, 2004). Some examples of criminal law jargon from
their
book: fruit of poisonous tree doctrine; imperfect self-defense; knock
and
announce rule; no-knock search; ostrich instruction; roving wiretap;
sneak and
peak warrant.
On p. 107 I mention that an
interesting type of
jargon is naming a rule or doctrine for the case that established
it. A
related phenomenon is to name laws for a well-known victim.
Examples from
New York (see Murray and Muldoon) include Jenna's Law, Joan's law,
Kendra's
Law, and Kieran's law. There are also a few laws named for the
perpetrator. One example is "Son of Sam laws," which are named
for a criminal known as the "Son of Sam."
Relationships among Words (p. 110)
p. 111--Some other examples of legal
homonyms:
rape: it includes things like having sex with
a woman
who is intoxicated or under the influence of a controlled substance
when the
man knows she is intoxicated. This is probably broader than the
ordinary
meaning of the word, although it is highly likely that men and women
disagree
on its exact meaning.
insanity: the legal definition in most
jurisdictions
is far more specific than its ordinary or clinical meaning. Under
California Penal Code § 25, the defendant must show that she could
not understand the nature and quality of his or her act and also that
she could
not distinguish right from wrong. Jury instructions sometimes
specifically mark this as "legal" insanity.
mayhem:
refers not to a general state of anarchy, but
to severing off or hacking off part of a person's body.
publish:
the legal meaning is often simply to
"make public." Thus, a forgery statute (Calif. Pen. Code § 476)
makes
it a crime to "publish...a fictitious...instrument in
writing..." You would think that it was illegal to write a novel!
Chapter 7:
Interpretation
and Meaning
For further elaboration on the themes
in this
chapter, see my article entitled A Message in a Bottle: Text,
Autonomy, and
Statutory Interpretation, 76 Tulane L. Rev. 431 (2001). I
also recommend Lawrence Solan's book, The Language of Statutes: Laws and Their Interpretation
(2010). Some interesting examples of how the
form of a verb can influence meaning, see Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in
Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1 (2008) .
p. 117--declaratory
definitions. An
example of where a declaratory definition can limit or reduce ambiguity
is the
problem of herein , described in my book on p. 94-5. A
solution to
this problem is to define the term herein, as well as
hereunder
to refer only "to this Agreement as a whole and not to any individual
article, section, subsection or other part of this Agreement." See
Model Loan Agreement, from a text called "Documents for International
Business and Economics."
p.
119--definition
of document. An even longer definition of this term (580
words!)
is contained in the "rider" attached to a subpoena sent to President
Clinton to testify before the grand jury. Almost all of the 580
words are
examples of what is included in the term, including letters of credit,
daytimers, forecasts, retainer records, appraisals, brochures, title
policies,
documents relating to filings under the Uniform Commercial Code and/or
its
equivalent, signature cards, real estate contracts, savings account
transcripts,
deposit slips, computer tapes, computerized records stored on fixed
hard disks
or WORM disks, microfiche, and voicemail recordings, to mention just a
few. Phil Kuntz (ed.), The Starr Report: The Evidence 501-3
(1998).
p.
122—if
you think that the Marx Brothers were unfairly spoofing legal language
(“the
party of the first part shall be known as the party of the first
part”),
have a look at the British Brighton Corporation Act of 1931. It solemnly declares that “The First
Schedule” “the Second Schedule,” “the Third Schedule”
(etc.) mean respectively the First Second Third (etc.) Schedules to
this Act.” Sir Robert Megarry, A New
Miscellany at Law 183
(Bryan A. Garner ed. 2005), quoting 21 & 22 Geo. 5, c. cix, 1931,
s. 6(54).
Chapter 8:
Variation
Legal Dialects (p. 133)
An important variety or dialect of legal English that has been
developing in
the past years is sometimes called International English. The
English
language is increasingly being used for drafting international
agreements, even
when neither of the parties are native English speakers or in
English-language
jurisdictions. Although I'm not aware of any formal study of this
type of
International Legal English (any grad students looking for a
dissertation
topic??), it appears to be somewhat of an amalgamation of different
dialects of
legal English, or in some cases a direct translation from concepts
common in
civil law jurisdictions.
Another interesting issue is whether use of an
English-language legal term in an international agreement suggests that
it
should be interpreted in the same way that the term would be construed
by an
English or American court, even if English or American law does not
apply to
the contract or other document. Some German courts have
apparently held
that the answer is yes, and at least one German court has held that the
use of
an English legal term not only incorporated the English understanding
of the
term, but also the "objective" method of interpretation used by
English courts when interpreting contracts. For comments and a
critique,
see Volker Triebel & Stephan Balthasar, Auslegung englischer
Vertragstexte unter deutschem Vertragsstatut--Fallstricke des Art. 31 1
Nr. 1
EGBGB, 31 Neue Juristische Wochenschrift 2188 (2004).
Legal slang.
p. 137-39: I recently heard a California judge remark that a court of
appeals flipped
a case (i.e., reversed it).
Though it is relatively rare, slang
terms
sometimes end up being legal or quasi-legal language. California
currently
has a statute (Pen. Code sec. 243.9) entitled "battery by
gassing." Gassing seems to derive from prison slang and
refers to the practice of prisoners throwing excrement and bodily
fluids at
guards.
Some additional slang terminology
from criminal
law can be found in Glenn Edward Murray and Gary Muldoon, Criminal Law
Slanguage of New York (Gould Publications, 2004). Examples
include Baby
DWI (lower permissible alcohol limits for teenage drivers); blood
sucker
order (an order authorizing an unauthorized blood test--why not
call it a vampire
order??); to bump (to challenge and remove a prospective
juror
during voir dire); horseshedding (instructing a client or
witness how to
testify, apparently deriving from a novel by James Fenimore Cooper).
Variation and Genre
p. 139-140: Poetry in judicial
opinions.
See Bad Times Over a Judges's Rhymes, L.A. Times,
Nov. 28,
2002, at A50 (reporting that an appellate court in Pennsylvania had
chastised a
state Supreme Court (i.e, trial court) judge for issuing an opinion in
rhyme.
The underlying lawsuit involved a claim by a disappointed fiancee that
the ring
her husband-to-be had given her did not contain a diamond, as he had
claimed:
A groom must expect matrimonial pandemonium
When his spouse finds he's given hera cubic
zirconium
Instead of a diamond in her engagement
band
The one he said was worth twenty-one
grand
The appellate court noted that this "reflects poorly on the Supreme
Court
of Pennsylvania" because "[n]o matter addressed by this court is
frivolous".
See also Mary Kate Kearney, The Propriety of Poetry
in
Judicial Opinions, 12 Widener L.J. 597 (2003).
For another opinion in rhyme, also
from
Pennsylvania, see Mackensworth v. American Trading Transportation Co.,
367 F. Supp.
373 (E.D. Pa. 1973). Notice that this is a federal court, where
judges
have lifetime tenure, so they do not have to worry as much about what
people
think.
An interesting article on poetry and
rhyme is Rhyme and Reason by
Canadian lawyer
John Kleefeld. You can click on the link to read the article in
pdf
format (it appears here by permission of the author) or find it
at 62 The
Advocate 351 (May 2004).
See also
Dennis
Kurzon, Legal Language: Varieties, Genres, Registers, Discourses, 7
Int'l J.
Applied Linguistics 119 (1997).
Chapter
9: Pleadings
Chapter 10:
Testimony and
Truth
Cross-examination (164)
Mark Adler has pointed out to me that
even the question, "Did you eat broccoli last night" can be leading, if
the point is put an idea in a witness's head. The proper form on
direct examination would be "What did you eat last night?"
The Language of Questioning
p. 169-70: For more on the informal
language of
sidebar conferences, as well as a theory about the purpose of such
language,
see Philip Gaines, Negotiating Power at the Bench: Informal Talk in
Sidebar
Sessions, 9 Forensic Linguistics 213 (2002).
Implications of the Questioning
Process
p. 172--Another possible example of
coaching of
witnesses is the statements or questions posed by President Clinton to
his
secretary, Betty Curry. All were tag questions of the sort
"Monica
and I were never alone, right?" During his testimony before
the grand jury, Clinton claimed that these were real questions to
refresh his
memory. Starr alleged that they were statements made to influence
the
testimony of Curry. Obviously, intonation is everything
here. See
Phil Kuntz (ed.), The Starr Report: The Evidence 372 (1998).
A analysis by Susan Ehrlich of the
language of
a rape trial in Canada reveals that some of the strategies used by
lawyers to
obscure the actor through passive constructions, nominalizations, and
the like,
are also used by criminal defendants for very similar reasons.
Thus, a
young man accused and later convicted of "date rape" used strategies
such as the following in an attempt to reduce his culpability:
**representing them as co-agents:
"we
started kissing" (p. 45)
** using agentless passives:
"all
of
our clothes at one point were taken off..." (p. 47)
**using unaccusatives (intransitive
verbs that
take nonagents or noncausers as grammatical subjects, as in "the glass
broke"):
"the
intimacy began"
"it
just kept progressing" (pp. 50-51)
In contrast, the complainants used expressions that attributed agency
to the
man:
"he
took my shirt off" (p. 42).
See Susan Ehrlich, Representing Rape: Language and Sexual
Consent (2001)
For more on the O.J. Simpson case
from a
linguistic perspective, see Janet Cotterill, Language and Power in
Court: A
Linguistic Analysis of the O.J. Simpson Trial (Houndmills: Palgrave
Macmillan, 2003)
Chapter 11:
Completing the
Story
Closing Arguments (181)
For more on the African-American
preaching
style, see John J. Gumperz, Discourse Strategies 187-203 (1992).
Instructing the Jury (193)
Click here for recent developments on
jury instructions.
For developments in Texas, see Wayne
Schiess, The Texas Pattern Jury
Charges Plain-Language Project: The Writing Consultant's View,
60 Clarity 23 (2008).
Jury
"directions" in England
Compare the stiff, impersonal, and
highly
formal language of the California instruction on reasonable doubt
(pp.
194-5) with the way that English judges are advised to instruct (they
would say
"direct") juries on the burden of proof:
A. Burden of proof
In this case the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.
B. Standard of proof
How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.
Source: CROWN COURT BENCH BOOK:
SPECIMEN
DIRECTIONS (available at
http://www.jsboard.co.uk/criminal_law/index.htm)
For
additional
discussion of the California vs English jury instructions, see Chris
Heffer, "If
You Were Standing in Marks and Spencers": Narrativization and
Comprehension in the English Summing Up, in Language in the
Legal
Process 228 (Janet Cotterill ed. 2002).
Chapter 12:
What Makes Legal
Language Difficult to Understand?
Technical Vocabulary
p. 203--I suggest here that most
people are aware
of the meaning of certain basic legal words, like defendant.
But
perhaps I'm being overly optimistic. The following is supposedly
a
colloquy that took place in a real trial and that is being circulated
on the
internet:
JUDGE: The charge here is theft of frozen
chickens.
Are you the defendant?
DEFENDANT: No, sir, I'm the guy who stole the
chickens.
Thanks to Robert Patterson, esq., of Santa Barbara.
Impersonal Constructions
p. 205: With reference to the problem
that
especially criminal statutes have multiple audiences, see the article
by
Robinson et al., described below, for an innovative solution.
Multiple negation (207)
Laurence R. Horn, Duplex Negatio
Affirmat...: The
Economy of Double Negation, 27 Chicago Linguistic Soc'y 80 (Lise M.
Dobrin et
al. eds., 1991) (Triple negatives are very hard to understand; people
lose
track of how many negatives there are.)
William B. Hodgson, Errors in the Use
of
English 219 (1885) (noting that "Piled up negatives prove easy
stumbling-blocks.")
Central
of Georgia
Ry. Co. v. Finch, 59 So. 619 (Ala. 1912) (jury instruction reversed and
new
trial granted because of triple negative: "unless the jurors believed
from
the evidence that the engineer did not discover the peril of the woman
in time
to avoid injury...")
Gary
Muldoon has sent me the following example from Groucho Marx (You Bet
Your Life): "I can't say I disagree with you."
Chapter 13:
Plain English
Internal Legal Language (p. 211)
p. 212: My prediction that
"crimes
against nature" will come to be understood as relating to environmental
crimes came at least partially true in 2002 when the Santa Barbara
News-Press
published an editorial under this title. The subject? That
California prosecuter should crack down harder on polluters and
poachers.
Santa Barbara News-Press, January 15, 2002, at A10.
Rules of Procedure
During the past years, the Federal Rules of Civil
Procedure
have been rewritten in light of plain language principles. They
will be
presented to the U.S. Supreme Court for approval in
2006. The
Court will then forward them to Congress, and if Congress has no
objection,
they will go into force in 2007. It would probably be an
exaggeration to call them "plain" English, but they have been greatly
improved in terms of readability and use more ordinary language than in
the
past. Presentation by Joseph Kimble at Law and Society Meeting,
Baltimore, July, 2006.
p. 213: As to improvements
being made in
statutory language, I have noticed that California's statutory drafters
have
for the past few years been systematically updating the language of
older
statutes that need to be revised for other reasons.
For instance, Civil Code section 1780 was amended in
1988.
Some of the linguistic changes included deleting such action
and
substituting "an action under subdivision (a) or (b)," which is both
less archaic (by avoiding "such") and more precise. Likewise, his
was replaced by his or her. Stats 1988 ch. 823 sec. 3;
ch. 1343
sec. 2. Later amendments changed the relative pronoun which
to that
(a more dubious change, in my opinion) and such person to that
person. These are modest changes, however, and nothing like
what has
been happening in some places like Australia.
Australia
has been at the forefront of writing statutes in
plainer English. See Hilary Penfold, When Words Aren’t Enough:
Graphics and Other Innovations in Legislative Drafting, in Marilyn
Robinson
(ed.), Language and the Law: Proceedings of a Conference 307
(2003). Penfold discusses use of flow charts and graphics
in
legislation in Australia--see examples in the paper.
Also, some
Australian
legislation uses the pronoun you!!! The statutes also contain
many
tables, some of which actually contain operative provisions.
Penfold
mentions that a drawback to graphics is that there are no verbs.
She has
several exhibits with illustrations, including Exhibit 2 from the Tax
Law
Improvement Act, which contains a section entitled “How to Work Out
Your
Cost” and is clearly aimed at a lay audience.
There has
also been much activity in New Zealand on the
subject of improving the language of statutes. See volune 52 of
the
journal Clarity (Nov. 2004).
For an interesting article on plain English and the
criminal
law, see Paul H. Robinson, Peter D. Greene, and Natasha B. Goldstein, Making
Criminal Codes Functional: A Code of Conduct and a Code of Adjudication
,
86 J. Crim. L. & Criminology 304 (1996). The authors note
that most
criminal statutes have a dual audience: members of the public and
adjudicators. They suggest that adjudicators can tolerate the
complexity
that is inherent in most current criminal codes, but that members of
the public
have a right to a criminal code that they can understand. In
essence,
there ought to be two criminal codes, one for the public and one for
judges.
The authors then proceed to offer a draft code of conduct that explains
to the
public, in plain English, what they can and cannot do, as well as a
draft code
of adjudication in legalese for judges and other professionals.
I also explore the issue in my
article entitled
A Message in a Bottle: Text, Autonomy, and Statutory Interpretation,
76
Tulane L. Rev. 431 (2001).
p. 214-215: Mami Okawara has
published her
description of legal Japanese. See Mami Hiraike Okawara, Legal
Japanese Viewed Through Unfair Competition Prevention Law, in
Language in
the Law (J. Gibbons et al. eds. 2004) (Hyderabad: Orient
Longman).
Okawara discusses the history of legal Japanese,
which could
be said to have begun with the first written constitution, promulgated
in 604
and written in Chinese characters. A legal code, which imitated
the
content of Chinese codes, was promulgated in 689. Some laws were
being
written in hiragana by the eighteenth century, but after the Meiji
restoration,
laws were again written in Chinese characters, according to the
imperial
custom. By 1926, however, Prime Minister Wakatsuki instructed his
cabinet
to improve the language of legal forms by the use of ordinary
Japanese.
Also important was that the post-war constitution was drafted in
ordinary
Japanese style. Several Japanese codes are now in ordinary
Japanese,
although a couple are still in the classical style.
Okawara then analyzes Japan's new Unfair Competition
Protection Law, adopted in 1995. She finds it much improved over
previous
codes, but there is still some unusual legal grammar, repetition of
words to
increase precision (in the same way that American lawyers repeat nouns
and
avoid pronouns), confusing technical vocabulary, and distinctive legal
pronunciation of certain words.
p. 217: For a good manual on drafting
contracts
in a commercial context, see Kenneth A. Adams, Legal Usage in Drafting
Corporate Agreements (2001).
p. 217: Judicial style.
See Laura E. Little, Hiding With Words:
Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA
L. Rev.
75 (1998), who conducted a study showing that between 1965 and 1995,
the U.S.
Supreme Court's usage of devices like passive voice and nominalizations
decreased. Little suggests that a reason may be that judges are
more
confident and thus have less reason to hide or minimize their
agency. Id.
at 139. It also seems possible that the justices (or, more
likely,
their law clerks) have been taught in legal writing classes to write
more
clearly.
p. 218: Lord Denning, quoted on this
page, died
recently at the age of 100. N.O. Stockmeyer, Jr., Beloved are
the
Storytellers , 18 Thomas M. Cooley Law Review 1 (2001).
Public: Shyster OK--If He's On Your
Side, 67
American Bar Ass'n J. 695 (1981). (Interviews with focus groups
revealed
that what people sought in a lawyer was someone "who would talk to
them,
without condescension, in plain English and perfectly honestly.")
Directive Orders Clear Language,
Santa Barbara
News-Press, June 2, 1998, at A6 (reporting that President Clinton
signed a
directive requiring bureaucrats to use plain English for all new
federal
documents, other than regulations, that explain how to get a benefit or
service
or how to comply with an agency requirement)
United States v. Standard Oil Co.,
384 U.S. 236
(1966) (Harlan, J., dissenting)
"[I]n a civilized state the least that can be
expected from government is that it expresses its rules in language
that all
can reasonably be expected to understand. Moreover, this
requirement of
clear expression is essential in a practical sense to confine the
discretion of
prosecuting authorities, particularly important under a statute . . .
which
imposes criminal penalties with a minimal, if any, scienter
requirement."
Marlene Cimons, Rule on Simpler
Medical Labels
to be Unveiled: U.S. Regulation Seeks to Help Consumers Better
Understand How
to Use Over-the-Counter Drug Products, L.A. Times, Mar. 11, 1999, at A1
(the
Clinton administration has announced a new regulation that requires
labels on
nonprescription drugs to be in larger print, with more white space, and
in
clearer language. Drug makers are encouraged (not required) to
simplify
the language, using throw away instead of discard and lung
instead of pulmonary.
Bender's Health
Care
Monthly, April 1997, at 8.
But They've Still Got Wigs, Newsweek,
May 10,
1999, at 6.
The English courts recently banned many legalisms
from civil
courts. They are now looking for 2000 volunteer courtroom
observers to
ensure that there is no backsliding.
Some examples of old and new usage:
subpoena--now: witness summons
in camera--now: in private
minor--now: child
interrogatory--now: request for information.
Some other examples were provided by an article in the Times:
writ--now: claim form
plaintiff--now: claimant
ex parte--now: without notice
Francis Gibb, Legal Latin Outlawed Pro Bono Publico, The Times
(London), Jan.
29, 1999, Home News.
The Plain
English Movement (p. 220)
p. 220: for an engaging account of
how the Citibank
promissory came about, despite great resistance by the bank’s legal
department, see Duncan MacDonald, The Story of a Famous Promissory
Note, 10
Scribes Journal of Legal Writing 79 (2005-6).
p. 221: On the SEC plain English
requirement,
see 17 C. F. R.
§ 230.421 (i.e.,
the Code of Federal Regulations).
See also Kenneth Firtel, Plain English: A Reappraisal of the Intended
Audience
of Disclosure Under the Securities Act of 1933, 72 S. Cal. L. Rev. 851
(1999);
Andrew T. Serafin, Kicking the Legalese Habit: The SEC's Plain English
Disclosure, 29 Loy. U. Chi. L. Rev. 681 (1998).
The Federal Judicial Center has been
experimenting with plain English class settlement notices (these are
often
published in newspapers and are supposed to notify people who might be
affected
by the settlement of a class action). One interesting finding is
that
when a notice is too informal, focus groups claim that they would not
even read
it. This supports the point made in chapter 6, page 100, that
formal and
ritualistic language can help "frame" an event and signal that it is
important. For more information, seehttp://www.fjc.gov (current
activities). This information is from 70 U.S.L.W. 2192 (10-2-01).
Another area where convoluted legal
language has been the focus of attention is in disclosures relating to
home loans. Recently, American consumers have been barraged with home
loan offers that contain some very surprising provisions, including
negative a
ization and sudden interest rate increases. They
are explained in language that few consumers understand, and the
companies offering the loans have little incentive to explain
them. See Kathy M. Kristof, Confusion
Rife for Borrowers, Study Finds, L.A. Times, June 14, 2007, at
C1 (referring to a study by the Federal Trade Commission). The Federal
Consumer Financial Protection Bureau now has a "Know Before You Owe"
project, which advocates for use of simpler mortgage disclosure forms.
For some of the reasons why it may be
more efficient for lawyers to
preserve
legalese, see Claire A. Hill, Why Contracts Are Written in
"Legalese" , 77 Chi.-Kent L. Rev. 59 (2001)
Remaining Challenges (p. 228-30)
For details
on the new
FTC rules on over the counter drugs, see the Federal Register at 64
F.R. 13,254
(1999). For some of the alternative "plain language"
terminology that drug manufactures can use, see 21 C.F.R. §
330.1(i).
Chapter 14:
Communicating
with the Jury
A very interesting
case on
jury instructions is now before the U.S. Supreme Court and will
probably be
decided around the summer of 2000. It deals with whether the jury
understood a Virginia death penalty instruction (the jury came back
with a
specific question that revealed that it did not understand the
instruction
properly). The judge refused to clarify the point, and the
defendant was
sentenced to death. For the underlying case, see Weeks v.
Buchanan, 176
F.3d 249 (4th Cir. 1999). Cert was granted May 10, 1999.
The case is particularly interesting because the
Supreme
Court upheld the very same instruction in Buchanan v. Angelone, 552
U.S. 269
(1998). The only difference, apparently, is that in Weeks, the
jury
actually came back with a question that clearly revealed lack of
comprehension. If the Court does deal with the case on procedural
grounds, this will be a very important case regarding comprehension of
jury
instructions.
Note: Weeks lost this case and has since been
executed.
Michigan's criminal jury instructions
are
generally quite good. Instruction CJI2d 8.6 actually uses a
contraction:
"the prosecutor doesn't have to prove..."
Appendix
for additional legal texts, see legal texts on this site.
Word and
Phrase Index
wife 121
(not 119)
General
Index (Whoops! I
missed a few things!)
Dickens, Charles, 64
Mayflower
Compact,
43
PAPERBACK
EDITION:
The blurb on the backcover has an
error.
In line 5, '...why it's doesn't have to be" should read
'it'.
Thanks to Noraini Ibrahim for pointing this out.