Peter Tiersma, Legal Language
Chicago Press, 1999).
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by Peter M. Tiersma
This book aims to provide a relatively comprehensive
of legal English, including how it got to be the way that it is, its
characteristics, how lawyers use language in the courtroom, and the
to reform it. The major theme running through the book is how
legal language functions as a means of communication. Many of the
uses or goals of legal language, including the goal of winning cases,
law's desire to appear objective and authoritative, and lawyers' use of
as a marker of prestige and badge of membership in the profession, may
or conflict with that central aim.
PART I: ORIGINS
How did legal language get to be the way that it
Is it the result of a conspiracy by lawyers to retain their
Or did it just develop naturally over the centuries? To answer
questions we need to look at the history of the language of lawyers.
1. CELTS, ANGLO-SAXONS,
There are virtually no remnants of the legal
of the original Celtic inhabitants of England, although there are some
that it was poetic and not particularly comprehensible for ordinary
a theme that continues to resonate.
The Anglo-Saxons pushed the Celtic language to the
of Britain. Some Anglo-Saxon words or legal terms have survived
today, including writ, ordeal, witness, deem, oath and moot.
Words had an almost magical quality in Anglo-Saxon legal
Their law used alliteration and conjoined phrases, a practice
has, to a limited extent, survived to the present (as in rest,
and remainder). The increasing linguistic complexity of
laws led to more complicated legal language, suggesting that the
of legal language may to some extent simply reflect an increasingly
Latin and the Advent of Christianity
Christian missionaries landed in 597 and
Latin. Latin terms that entered legal language in this period
words like clerk. One impact of Christianity was to
the use of writing, which was later to have a tremendous impact on the
Although Latin was incomprehensible to most of the population, it
communication at a time when there was no standard for written English.
Vikings raided the English coast, and eventually
down. Legal terms from Norse include the word law itself,
otherwise the language did not have a large impact on legal English.
CONQUEST AND THE INTRODUCTION OF FRENCH
William the Conqueror Invades England
The Norman conquest in 1066 placed French-speaking
in virtually all important positions in England; French thus became the
of power. Virtually all English words relating to government are
French. The Normans initially used Latin rather than French as a
language of the law. Only around 200 years after the conquest did
statutes appear. They remain French until the 1480s. Strong
that the courts operated in French did not appear until the end of the
century. The use of French in courts seems tied to the expansion
jurisdiction of royal courts during this period; royal courts were
conducted in French, which was still the language of the aristocracy
royal household at this time. In a sense, therefore, adoption of
for legal purposes could initially have promoted communication with
most affected by royal law.
Ironically, at the same time that French was in
as the language of the law, use of Anglo-French as a living language
beginning to decline. It is probably no accident that this was
the period when a professional class of lawyers arose. Soon after
Anglo-French was virtually extinct as a living language, but it had
firmly entrenched as the professional language of lawyers.
The Continuing Use of Latin
Throughout this period, Latin continued to be used
a legal language. It came to be known as "Law Latin," and included
legal terms of French origin, as well as English words when clerks did
know the Latin. Legal maxims, even today, are often in Latin,
gives them a sense of heightened dignity and authority. Names of
(mandamus, certiorari) and terminology for case names (versus,
ex rel., etc.) are still in Latin, perhaps a reflection of the use
Latin for writs and court records until the early 18th century.
French eventually became a language used only by
and became known as "Law French." Early efforts to abolish it in
proceedings failed. Possible reasons for the retention of Law
after its demise as a living language include claims that it allowed
more precise communication, especially with its extensive technical
the dangers of having ordinary people read legal texts without expert
the conservatism of the profession; and a possible desire by lawyers to
their fees and to monopolize provision of legal services. If
else, it reflects the conservatism of the profession at the time.
Some of the characteristics of Law French that have
traces in today's legal language include addition of initial e
words like squire, creating esquire; adjectives that
nouns (attorney general); simplification of the French verb
so that all verbs eventually ended in -er, as in demurrer
and a large amount of technical vocabulary, including many of the most
words in our legal system. Law French eventually was reduced to
1000 words, forcing lawyers to add English words to their French texts
abandon. A notorious example is the "brickbat" case from 1631.
Trilingualism and Code-switching
During this period, lawyers had to be trilingual in
Latin and English. Each language was traditionally used in
domains. Even more than today, perhaps, law was in those days a
The Demise of Latin and Law French
Use of Latin and Law French for legal purposes
declined, and was given a final coup de grâce in 1730.
The Increasing Importance of Writing and Printing
Legal language was originally entirely oral.
there was a writing of a legal event, it was merely a report of the
ceremony. Eventually, the writing became a type of autoritative
the dispositive or operative event itself. What now mattered was
was written, and what was said became largely or entirely
This progression can be seen in written reports of court proceedings,
first merely documented an oral event, but which later became the event
so that what is said in an appellate court in the United States today
legally immaterial; what matters is the written opinion.
also went through this progression. Printing contributed to these
by allowing for a standardized and widely-available version of the
text. Now all that matters is the enacted text of a statute, or
published version of a judicial opinion, which has led to an ever
fixation on the exact words of legislation, and has permitted the
of the doctrine of precedent.
Further Developments in England
As pleadings became written, rather than oral, they
became subject to increasing textual scrutiny and were often rejected
the smallest linguistic slip. This encouraged use of formbooks,
had a conservatizing effect on legal language by promoting continuing
of antiquated phrasing. And legal documents became ever longer as
and lawyers charged by the page. In part for these reasons, the
profession began to find itself in low repute.
Legal English Throughout the World
English colonizers transported legal English
the British Empire, including North America. Despite antipathy
lawyers and the English, the Americans maintained English legal
The Articles of Confederation were linguistically very convoluted and
of legalese. Thomas Jefferson advocated improving the style of
although did not really follow through. The Declaration of
and American Constitution are elegant and relatively simple, but in
American legal language closely resembled that of their former colonial
The same is true in other former English colonies. To a large
the retention of English legal language is closely related to the
or adoption of English common law. People who adopt concepts from
culture tend also to adopt the words used to describe those concepts.
Lawyers did not invent Law French, or today's legal
for the purpose of monopolizing the profession. It developed
under the influence of diverse languages and cultures, as well as the
complexity of the legal system and the shift from predominantly oral to
written communication. Yet to some extent, legal language does
the effect of enabling lawyers to retain their virtual monopoly on
legal services. The fact that laymen remain dependent on lawyers
creating and "translating" legal texts makes it hard for lawyers to
their distinctive language.
PART II: THE NATURE OF LEGAL LANGUAGE
How does the language of the law differ from
speech and writing? Do these differences enhance clear and
communication, as lawyers typically claim, or detract from it?
Lawyers seem to have developed some linguistic
that have little communicative function, and serve mainly to mark them
members of the legal fraternity.
Pronunciation and Spelling as Markers of Group Cohesion
The odd pronunciation of defendant (with a
vowel in the last syllable, rhyming with ant) and the spelling judgment
(consistently without an e) seem to serve as a marker of
cohesion. Ironically, when pronouncing words of Latin or Law
origin, the recent trend is not to follow the expected traditional
of the legal profession (i.e., as though the words were English), but
to use the articulation taught in foreign language classes. The
may be that the traditional legal pronunciation sounds unsophisticated
the modern ear, and lawyers are very concerned about appearing
Lengthy and complex sentences
Studies show that sentences in legal language are
a bit longer than in other styles, and also have more embeddings,
them more complex. Sometimes there seems to be an attempt
state an entire statute or linguistic principle in a single sentence,
illustrated by a California law against insuring lotteries. Such
statute can easily be broken down into more digestible pieces with no
in content, so there is no justification for such long sentences today.
Wordiness and redundancy
Lawyers are very prone to use wordy and redundant
including what is sometimes called boilerplate. Lawyers also tend
use ponderous phrases (such as at slow speed or subsequent
where a single word would suffice (slowly; after). On the
hand, sometimes legal language is not overly wordy at all, but highly
or dense. The economic incentives and strategic motivations under
lawyers operate seem to be significant here: when clients are paying a
fee, there is a motivation to be verbose; when a document is written
a busy court, however, lawyers realize they have to get to the point
Conjoined phrases consist of words like by and and
or, as in I give, devise and bequeath the rest, residue and
They have been used since Anglo-Saxon times. Conjoining words
still extremely common in legal language. One reason for such
of words is to be as comprehensive as possible. They also can add
But they can lead to ambiguity because of the rule of interpretation
every word should be given meaning and nothing treated as
Thus, careful communication requires that lawyers use such conjoined
Unusual sentence structure
Lawyers make use of unusual sentence structures, as
a proposal to effect with the Society an assurance, which is
from an insurance policy. Often these unusual structures result
separating the subject from the verb, or splitting the verb complex,
can reduce comprehension.
Legal language seems to use an inordinate amount of
To some extent this may result from the tendency to regulate by
judges prefer negative injunctions, for example. Research reveals
especially multiple negation impairs communication and should be
A related characteristic of legal style is
constructions. The best example is avoidance of first and second
expression (I and you). Using the third person in
does make some communicative sense (as in Sex offenders shall
with the police...) because the statute "speaks" not only to sex
but to the police and the courts; you might therefore be inappropriate
ambiguous. Elsewhere (as in the tendency of judges to refer to
as the court rather than I) it creates an impression of
and authority, thus helping to legitimate the legal system.
panels seem less reluctant to use we, and will even use this
to refer to a decision made by their predecessors long ago. Here,
first person stresses the continuity and perceived timelessness of the
Many of the quirky or stylistic features of legal
serve little or no communicative function and could easily be dispensed
especially because they may reduce comprehension.
5. THE QUEST FOR PRECISION
One of the main justifications for a distinct legal
is that it is capable of extremely precise communication.
Avoiding Pronouns: "Player Promises That Player Will Play..."
One means of gaining precision is to repeat nouns
player), rather than using a pronoun (e.g., he) after a person or thing
introduced. Pronouns can sometimes have ambiguous reference, so
technique can indeed enhance precision. Lawyers, however, avoid
almost routinely, even where no ambiguity is possible. Avoiding
does have an unintended benefit: it reduces the use of sexist
Undermining Precision: "The Masculine Shall Include the Feminine"
Legal documents often declare that the masculine
the feminine, the singular includes the plural, or that one tense
the other. This may originally have functioned to reduce
as suggested by Jeremy Bentham, but it obviously can undermine precise
when reference to a specific gender, number or tense is desired.
legal language is not always so precise, after all.
Strategic Imprecision: Obscuring the Actor Through Passives and
Passive sentences allow the speaker or writer to
reference to the actor (as in the girl was injured at 5:30). One
lawyers use passives is for strategic reasons: to deliberately
or obscure who the actor is. Passives are therefore impersonal,
them an aura of objectivity and authoritativeness; this may explain why
are common in court orders. They are less common in contracts,
the parties typically wish to spell out exactly who is to do what, and
have an interest in precise reference to the actors.
Nominalizations are nouns derived from verbs (e.g.,
from the verb injure). Like passives, they can be used to obscure
actor (the injury occurred at 5:30). A legitimate function of
is that they allow the law to be stated as generally and objectively as
Lawyers often use passives and nominalizations strategically,
They avoid them when they wish to be as precise as possible, and use
when they wish to be deliberately imprecise.
Flexible, General, or Vague Language
Some legal terms are not precise at all, but are
for their generality, flexibility, or even vagueness (e.g., reasonable
due process). Flexibility has a valid communicative function; a
like reasonable can change with the times and circumstances.
it can change with the times, flexible language is characteristic of
It may also be valuable when lawyers wish to be as comprehensive as
Yet sometimes a term like obscene or indecent is felt to be too
because it gives great discretion to the decisionmaker; the Supreme
has tried to limit that flexibility by tying obscenity to community
Flexibility is likewise less appropriate in criminal statutes in
because people ought to know in advance what is legal and what is
Lawyers also are nervous of overly flexible language, because it may be
in an unintended way in the future.
The Tension Between Flexibility and Precision
Lawyers are often torn between the conflicting goals
flexible communication (through the use of general language) and
(often by using word lists of specific examples). Sometimes it is
to avoid the vagueness problems inherent in flexible terms by using a
list, which tends to allow for more precise communication. This
illustrated by a hunter harassment statute, which a court struck down
vagueness grounds when it forbade harassing hunters in general terms,
later upheld after the legislature added a specific list of prohibited
But aiming for precision by using lists has its costs. There are
interpretive maxims, including noscitur a sociis, ejusdem generis,
and expressio unius, which all tend to restrict, rather than
the interpretation of items in a list. Elsewhere, flexible
has sometimes proven preferable to precise lists, as shown by
in the prudent investment rule. Lawyers consequently aim to
the best of both worlds by using phrases like any X, including but
limited to a, b, and c, thus marrying the general and the specific,
there will inevitably be tensions between the two.
Legal language can, in some ways, communicate quite
But other characteristics undermine precision, and certain features can
used strategically to be deliberately imprecise. Furthermore,
may opt for flexible communication, which is in some ways the opposite
precision and is often in tension with it.
6. THE LEGAL
Another way in which the language of the law is
to promote clear and concise communication is through a specific legal
A common criticism of the legal vocabulary is that
is full of antiquated features. These include archaic morphology
affiant sayeth not); the legal use of same, said, aforesaid, such and
wit; use of the subjunctive, especially in the passive (be it known);
words like herewith, thereunder, and whereto. Although these
often had a legitimate function in the past, the claim that archaic
or expressions should be preserved because they are somehow more
than ordinary language is simply not defensible.
New Wine in New Bottles
Even though some legal language is quite archaic,
other old legal terms have died off as the concepts to which they refer
obsolescent. In fact, some areas of the legal lexicon are very
as in terms like zoning and palimony. Such terms give the law the
to deal with novel circumstances and legal developments.
Asylees, Escapees and Tippees
Another example of linguistic creativity in legal
is the frequent formation of new words ending in -ee, which
to those ending in -or (mortgagee/mortgagor).
these pairs are confusing for the lay public, they can enhance
within the profession by filling lexical gaps that exist in ordinary
Conservative or Innovative?
Legal language is neither hopelessly conservative
remarkably innovative. Often there are reasons for using
vocabulary. Like religious language, the language of the law is
conservative with regard to sacred or authoritative texts, which
are reluctant to change or even to translate for fear of affecting the
The fact that courts have authoritatively interpreted a term does
caution, of course. Further, using proven language over and over
be economical. A less palatable reason is that because archaic
is hard for most people to understand, lawyers sometimes have a
incentive to use it to help justify their fees. Yet when dealing
new legal concepts for which there is no existing word, lawyers do not
to create novel terminology. As a result of these conflicting
and goals, legal language is an odd mixture of archaic alongside very
Formal and Ritualistic Terminology
The legal lexicon also has many formal or
words and phrases. One function of such language is to emphasize
a proceeding is separate from ordinary life. Often ritualistic
frames a legal event by signaling the beginning and the end. In
legal documents, ritualistic and formal language indicates that
like a will is an important legal act, sometimes called the ritual or
function of legal formalities. Of course, this function could be
by means that are more comprehensible. In fact, taken to
formal language is simply pompous and serves little function besides
possible prestige value.
Do and Shall
When do is used in a declarative sentence,
normally to add emphasis. This is not its function in legal
(e.g., The People of California do enact...) Here, it
that something is a performative. The adverb hereby (as in the
of California hereby enact...) fulfills the same function:
that by saying enact, the legislature by those very words
in the act of enacting. Because do is anachronistic and unusual
this usage, it should be avoided; hereby can easily communicate
Shall is also used in an unusual sense in
language. It is commonly said that legal use of shall does
indicate the future, but the imposition of obligation. But shall
appears to function also in promises or declarations. In
shall seems to mark that the phrase in which it occurs is part
the content or proposition of a performative phrase. Thus, in a
the parties perform the act of promising by signing the contract; the
of their promises is indicated by shall. Shall does
the function of indicating that the document in which it occurs is
which may help explain its pervasiveness in legal language.
however, the meaning of shall can be communicated more comprehensibly
must or will or is.
Jargon, Argot and Technical Terms
It is sometimes said that the legal vocabulary is
of argot. Argot is generally used to communicate in secret among
small group; this does not properly typify legal language. Others
that legal terminology is largely jargon. I use the term jargon
refer to language of a profession that is not sufficiently precise to
as a technical term (e.g., conclusory). Jargon can be
in facilitating in-group communication, but should obviously be avoided
communicating with the public.
If the distinctive legal vocabulary actually
communication, it must be mainly through technical terms, or terms of
It is sometimes claimed that legal language has few true terms of
Any law dictionary reveals that there are large numbers of technical
however. Those who claim otherwise may have too strict a notion
the precision required for a technical term. As long as an
has a relatively exact meaning, is used by a particular trade or
and promotes brevity of expression, it fulfills an important
function and can properly be called a technical term. Such terms
less exact in law than in the hard sciences because legal terms
refer to concepts that change over time, or are slightly different in
jurisdictions. And they may be modified by judicial
Contrary to expectations, judicial decisions, by following the intent
the drafter over the "plain meaning" of a word, often make the meaning
the word less precise. Courts and the legal profession could work
to make legal terminology much more exact, but it would come at the
of negating the intentions of speakers who use a term in a different
Legal terminology will therefore never be as precise as the profession
Relationships Among Words
In ordinary English words exhibit certain systematic
relationships. The same is true for legal language, but with a
of deviations that can trap the uninitiated.
One way that words can be related is as homonyms, or
polysemy. In either case, one word or sound sequence has two or
meanings. This can cause communication problems when legal terms
both an ordinary meaning and a divergent legal meaning (as in
or personal property). These words, which I call legal homonyms,
particularly problematic because laymen are very likely to
them in their ordinary sense, and even courts are sometimes unsure
the ordinary or technical meaning was intended.
Words can also be related as synonyms, which refers
words with very similar meanings. On the one hand, lawyers are
to avoid synonyms or elegant variation. Using a different word is
to invoke a different meaning. On the other hand, lawyers have a
love for long lists of synonyms, especially in conjoined phrases.
of synonyms can thus create interpretative problems.
A final relationship is antonymy, or lexical
Legal language has a tendency to create such opposition where it does
normally occur. Speech and conduct overlap in ordinary language,
American courts now treat them legally as opposites: if something is
the First Amendment applies; if an action is mere conduct, it does
Yet it must be confusing for the layperson to read that burning an
flag is free "speech."
INTERPRETATION AND MEANING
This section discusses several ways in which legal
and meaning differ from ordinary language interpretation, and some of
Definitions nowadays are normally descriptive, which
they are based on usage. In common law countries, no one has the
to dictate how a word ought to be used, which would constitute a
definition. Definitions in legal language, however, are
because here there is an institution that can dictate how a word ought
be used: the legislature.
I call these declaratory definitions. They
occur in contracts and other legal documents. Such definitions
promote more precise drafting by stipulating that one of several
meanings is intended. But they are also hazardous, because the
may not always realize that what seems to be an ordinary word is
in a specific--sometimes, aberrant--way. There are also
definitions, which are not really definitions at all. They simply
a large amount of text and define it as X, allowing the text to be
from the body of the statute and placed with the definitions.
the practice can minimize redundancy in the text, it can also make less
and harder to find.
Reference is important to the law; the law of
is largely about preserving the unambiguous reference of marks.
of reference can also cause problems in wills. To avoid
ambiguity in legal documents, lawyers often use what I call declaratory
declaring in a document that Garcia shall refer to Hilda Garcia, an
residing in San Antonio, Texas. Linguists also distinguish
referential descriptions (a specific person or thing) and attributive
(whoever meets the description). This is quite relevant in the
of wills, where a gift of my car could be either
car I now own--or attributive (whatever car I own at death).
legislation is almost always written in an attributive (thus,
way, applying to any person who fits a description. This can be
however, as when a tax break that seems to be attributive in fact
to a specific person or entity.
Legal interpretation differs in several ways from
understanding. In ordinary language, what really matters is what
speaker means by an utterance (speaker's meaning), rather than what a
or utterance means (word or sentence meaning). Irony provides a
example, because here the sentence meaning (I love being hit on the
by a brick) is highly misleading. In theory, legal interpretation
private documents also focuses on the speaker's meaning, but this is
by the evidentiary limitations of the parol evidence rule. With
interpretation, courts now often look to the intent of the speakers
intent). Yet referring to legislative intent is controversial,
in the theory of interpretation called textualism, which has revived
plain meaning rule. The plain meaning rule excludes consideration
extrinsic evidence when the meaning of a statute is plain from a
of the text itself. This is completely inconsistent with ordinary
interpretation, which uses any cues it can--such as shared background
or information on the circumstances of an utterance--to determine the
But the plain meaning rule is not entirely
it derives to some extent from the historic shift from oral to written
We tend to interpret written texts differently from speech.
who writes a text often tries to make it as autonomous as possible, so
any information needed to interpret it is contained in the text
This is often necessary, because the reader of a text may be in a very
location, at a very different time, and may know little or nothing
the circumstances surrounding the writer. Logically enough, legal
are written to be very autonomous. One view of the plain meaning
therefore, is that judges will assume that the drafter was successful
creating an autonomous document, so that ideally extrinsic evidence
not be needed. At least as an initial assumption, this seems
Another reason for legal interpretation to place
emphasis on the speaker's meaning is the problem of collective
as well as the fact that one or more of the authors may be dead or
unavailable. Furthermore, legal interpretation must deal with the
of gaps, when the text is silent on a particular point. In a
conversation, one interlocutor can ask the other to fill the gap.
most legal documents, courts must find some other means of deciding
to do when the text is silent. Courts thus necessarily construct
where there was none before, rather than simply interpreting the
This is sometimes difficult to spot because courts prefer not to act in
authoritative ways, so they continue to speak of interpretation while
engaging in construction.
A final difference between legal and ordinary
derives from the fact that an interpreter must always keep in mind the
and conventions used by the speaker or writer. There is a
relationship between encoding and decoding language. The evidence
in this book suggests that legal writers do indeed use language and
conventions that are distinct from ordinary language. An example
that normally if someone uses synonyms, we assume she is engaging in
variation and that the synonymous terms refer to the same thing.
drafters generally try to avoid such variation; the legal interpreter
thus assume that the synonyms in fact refers to something
Most students of legal interpretation have concentrated on what courts
but they should perhaps pay more attention to the legal language and
of the drafters.
Dialects reflect linguistic variation on the basis
geography. Legal language is not a dialect, but it does have
of its own in that it varies according to place. Some of this
variation results from differences in legal systems; English lawyers
of solicitors and barristers, a distinction not made in the United
Elsewhere, the concepts are similar, but words for them are different
company law versus American corporate law). In countries such as
legal English is infused with many terms for indigenous legal
Thus, even though legal language is quite conservative in some senses,
other ways it again reveals itself as a relatively flexible means of
by readily adapting to the situation in which it is used.
Spoken Legal Language
Legal language further varies depending on whether
is spoken or written. The most salient characteristics of
vocabulary, long and convoluted sentences, use of passives and
far more evident in written legal language. Written language is
more compact and dense. Spoken legal language tends to be less
overall. An oral judgment by an English judge is perhaps the most
type of spoken legal English. Oral arguments to a court tend to
in standard English, while addressing a jury might very well be in a
variety of English that is aimed at identifying with the local
As with medieval lawyers, choice of language variety in specified
is dictated to some extent by tradition, but these days strategy also
an important role.
Telegraphic speech leaves out all words that could
supplied by context; it is common in telegrams and headlines. It
often heard in the courtroom (lawyer: Objection! Judge: Overruled),
but also in some quite formal settings, as at the end of an opinion (appeal
dismissed). It again illustrates that lawyers can cut out
verbiage when its suits their purpose.
Despite claims that their speech habits are very
even pompous, lawyers not infrequently use legal slang. Slang
group cohesion and is often shorter (thus more "linguistically
than more formal language. Examples include rogs for
TRO for temporary restraining order, SLAPP suit for strategic lawsuit
public participation, and idioms like grant cert for grant a writ of
Variation and Genre
There are various genres, or types, of legal
They illustrate again that legal language is not monolithic, but can
substantially depending on the situation. Pleadings, petitions,
contracts, deeds and wills can be called operative legal documents
they create and modify legal relations. They tend to use a great
of legalese. Expository documents are those that explain the law,
office memoranda, judicial opinions, and client letters. They
to be in formal but standard English, with little legalese, except that
do use many technical terms. Especially judicial opinions have a
amount of stylistic freedom, making use of metaphors and sometimes even
Persuasive documents include briefs to a court and memoranda of points
authorities; their language is similar to expository documents.
is interesting and ironic to observe that documents drafted more
for clients (operative documents like wills and contracts) seem to
the most legalese, while those directed to colleagues within the
(expository and persuasive documents) contain relatively less.
So What Is Legal Language Exactly?
Legal language has been called an argot, a dialect,
register, a style, and even a separate language. In fact, it is
described with the relatively new term sublanguage. A sublanguage
its own specialized grammar, a limited subject matter, contains
syntactic, and semantic restrictions, and allows "deviant" rules of
that are not acceptable in the standard language. However we
it, legal language is a complex collection of linguistic habits that
developed over many centuries and that lawyers have learned to use
PART III: IN THE COURTROOM
9. PLEADINGS: CONSTRUCTING THE
A very general narrative structure, sufficient for
purposes, begins with some background information, continues with a
description of a series of events that leads to a problem or
The narrative ends with the resolution of the problem or crisis.
The pleading stage, which begins a lawsuit, is where
plaintiff tells his story to the court. As a narrative, it is
in at least two important ways. Unlike an ordinary story, which
asserted as truth, the story told in a complaint is merely alleged to
true; its truth remains to be established at trial. And it is
in the sense that there has not yet been a resolution of the problem or
this depends on the outcome of the trial.
The defendant can respond to the pleading in various
arguing that the story in the complaint is not legally adequate, or
the decisionmaker does not have the authority to offer a resolution
Another option is to admit that the story is adequate, but to challenge
truth by denying the facts, or offering a counternarrative.
Pleadings tend to be extremely ritualistic in
In medieval times, what mattered was not so much the content of a
as the words that were used; one slip could be fatal. Pleading
formal and ritualistic, but currently the content has become far more
than the form.
Once the pleadings have determined that the
story is legally adequate, the trial--to determine the truth--can begin.
Many cases do not actually go to trial, but are
In criminal law, the settlement process is called plea bargaining, a
that can be quite informal and has developed a jargon or slang of its
When a case does not settle, it proceeds to
Various rituals signal that a trial is about to commence. The
order of business in a jury trial is the voir dire of the jurors.
search for truth can then commence. Most of the examples in the
two chapters derive from two murder trials, including that of O.J.
Language Variation and Code-Switching in the Courtroom
Just as lawyers switch between language varieties when
they do the same when speaking in the courtroom. Normally, choice
one variety over another depends on the topic of conversation, or the
of the hearer to understand a particular type of speech. Yet
a particular variety of language also has social implications in that
judge people by the language they use. Furthermore, use of a
variety of language can create a sense of group cohesion. Lawyers
inclined to use standard English in court when they wish to appear
and competent, and regional varieties of English when they wish to bond
Questioning of Witnesses
Witnesses come to court to tell their own story,
forms part of the larger narrative that is on trial. Although
generally prefer to tell their tales in narrative form, the legal
forces them to testify through a rigid question and answer format,
allocates control over testimony to the examining lawyer.
Direct examination generally begins with giving the
an opportunity to present a very brief narrative. The examining
then generally follows up with increasingly coercive or controlling
including wh-questions, which limit the witness to a brief response, or
or alternative questions, which allow only two possible
Lawyers use such questioning strategically, to
that all and only legally relevant facts are told, as well as to keep
facts from emerging, if possible. Careful questioning can also
precise communication by clarifying ambiguities in a witness's answer,
by asking the witness to explain unusual terminology.
an even more coercive question type: leading questions. Such
are not tied to any specific form, but have in common that they suggest
single answer. One function of such questions is to muddy the
by undermining the clarity of the witness's communication during direct
Or they can be used to undermine credibility by eliciting a clear
that can later be contradicted by other evidence, as Simpson's lawyers
during cross-examination of Detective Mark Fuhrman.
The Language of Questioning
Lawyers are well aware that if they wish to
effectively with the jury though questioning, they must generally use
English, not legalese. Their language tends to be fairly formal,
to convey to jurors that they are intelligent and competent. Out
the presence of jurors, as during sidebar conferences, lawyers tend to
less formal and may even use slang, perhaps to emphasize that although
are adversaries, they belong to the same profession.
Implications of the Questioning
Questioning is not a neutral and transparent process
obtaining information. Narrative answers are generally more
than fragmented responses, for example. The wording of a question
influence the responses given by witnesses, according to
tests. Research also confirms that leading questions can
the recall of witnesses. While objections by counsel can limit
influences, suggestive questioning is particularly problematic when it
used to subtly coach witnesses, out of the presence of a jury or
The way that questions are answered can also
the perceived credibility of the witness, the examining attorney, or
Witnesses who speak in a powerful style (using little hedging and
for example), as well as those who speak formal standard English, tend
be evaluated as more intelligent, competent, and truthful. This
especially problematic for witnesses who cannot easily change their
style. Ironically, trial lawyers have become aware of the
and are attempting to incorporate it into their trial strategies.
Creating a Written Record
The testimony of witnesses is transcribed by a court
It is not truly verbatim and complete. One reason is that
information is not consistently included, although lawyers will
ask that the record reflect nonverbal information. More troubling
that reporters sometimes "clean up" the language of lawyers and judges,
enhance their feelings of prestige.
As in other areas of the law, the written text of
record has become what matters once the trial is over, making the
oral event virtually irrelevant in subsequent proceedings.
consciously try to create an advantageous record through their
strategies. And as with other written legal documents, the record
to be interpreted as an autonomous text. Thus, in perjury
courts fixate on the language of the record to determine whether a
made a false statement, largely ignoring the speaker's actual
11. COMPLETING THE STORY
After the lawyers have produced evidence
to prove or negate the plaintiff's story, they make their
summation or closing argument.
In closing, the plaintiff's attorney must weave
a complete narrative out of the disorganized fragments that were
by various witnesses and other evidence at trial, much like a film
She must also persuade the jury that the story is true. Although
tend to favor long lists of synonyms, for example, in closing they
chose one or two that convey a sense or connotation that favors their
interest (as in calling an unborn child a baby in an abortion
They also use antonymy by contrasting one term with its opposite.
Although some lawyers use fairly formal standard
they generally tend to be more effective if they use a somewhat more
variety. During her summation in the Simpson case, prosecutor
Clark tried to bond with the female jurors by opening herself up and
her emotions, but was not really successful. Prosecutor Darden
have been somewhat more successful, carefully using second person
to suggest that the murder victim, Nicole Simpson, was sending jurors a
from beyond the grave.
Defense attorny Johnny Cochran successfully
his client by emphasizing that he was Orenthal James Simpson, not
the defendant. Like Anglo-Saxons of long ago, he used conjoined
phrases (that the evidence was compromised, contaminated and corrupted)
rhyme (if it doesn't fit, you must acquit). Unlike Clark, Cochran
bonded with the mainly African American jury by invoking themes and
of the civil rights movement, and speaking like a preacher in a Black
He used inclusive we to suggest a shared journey towards justice.
by using relatively formal and standard English, he came across as well
while the subtle intonation and accents of a Black preacher allowed him
invoke group solidarity.
Instructing the Jury
In many proceedings, it is members of the
jury--who must decide the truth of the plaintiff's story. To some
the jury must also decide whether the story is legally adequate.
tell the jury how to go about this task by means of jury
Unfortunately, most jury instructions are essentially written legal
though presented orally, and thus do not communicate the law very well
the lay members of the jury. And judges seem to prefer formal
to appear objective by distancing themselves from other participants.
The reasonable doubt instruction is especially
there is substantial evidence that jurors do not understand it very
in part because it tracks the language of an 1850 case.
judges are extremely reluctant to explain the instructions in ordinary
treating them as sacred text, and generally rereading them verbatim if
jury inquires regarding their meaning.
Resolving the Conflict
Just as lawyers use stories to present their cases,
indicates that jurors use them to determine the truth. The
determined by the verdict is not factual truth, however, but "declared
which governs all later legal proceedings. After this "truth" is
the judge is in a position to complete the unfinished narrative of the
by offering a resolution (or denying one) in her judgment.
PART IV: REFORMING THE LANGUAGE OF
Members of the public have been frustrated
language for quite some time. There has also been criticism from
the profession. In this section we discuss efforts to reform the
of the law. This can happen either via simplification (making the
of lawyers much more like ordinary language) or translation (leaving
language essentially as it is but providing better translation to the
in ordinary language, when needed). Ultimately, we will probably
a bit of each.
12. WHAT MAKES LEGAL LANGUAGE DIFFICULT
Research shows many of the ways in which
causes problems in comprehension, especially for a lay audience.
vocabulary, unusual and archaic words, impersonal constructions, use of
like shall, multiple negation, long and complex sentences, and poor
are all problematic. In fact, virtually all features of legal
seem to impede communication with the public.
13. PLAIN ENGLISH
Given that legal language does not
communicate very will
with the public, what has the profession done about it?
Internal Legal Language
Internal legal language refers to communications
at other legal professionals. Here, the need to reform would seem
compelling. Yet even internal communications are generally made
behalf of a client, who has a right to know what is being asserted on
One area where the courts have explicitly recognized
people have a right to know what legal language means is criminal
which must place the "average person" on notice that something is
It is doubtful, however, that people really understand such
Unfortunately, it may not be realistic to expect the average person to
statutes. Understanding a statute requires more than plain
a person must also have some background knowledge of the legal system
relevant judicial decisions. Still, we should strive to make
law as clear as possible. In fact, a fair amount of progress has
made; law schools teach plain English principles and drafting manuals
such practices. There has been progress in non-English speaking
like Sweden and Japan, as well. Overall, the organization and
of statutes has dramatically improved, and there is far less
Unfortunately, statutes are ever more complicated in terms of
Better drafting practices in some ways allows them to become longer and
Progress with other types of internal legal language
more mixed. Pleadings are still very formulaic. On the
hand, judicial opinions have greatly improved in style (though perhaps
less in the United Kingdom).
Members of the public have an even greater interest
understanding consumer documents, which directly affect their rights
Evidence shows that consumers do not understand legal documents like
agreements and insurance policies very well.
The Plain English
The Plain English Movement, part of the consumer
grew out of the notion that people should be able to understand
consumer documents. The movement was inspired by a revised
note introduced by Citibank in the 1970s, and eventually led to a fair
of plain English legislation. Similar reforms occurred in
like Australia and the United Kingdom.
Is legislation the most effective way of promoting
English? The earliest such statutes were phrased in very general
flexible terminology, requiring documents simply to be "clear and
Later legislation aimed for greater specificity and precision by use of
list approach, establishing a list of guidelines like the use of active
short sentences, and no cross references. But guidelines are only
good as the people who apply them, and are hard for judges to
A somewhat different approach is objective, requiring that documents
certain readability criteria, like the Flesch test. This test is
to apply because it merely measures the average length of sentences and
Scholars have criticized it because there is no direct relationship
word or sentence length and comprehension. Yet if we assume that
are acting in good faith and not trying to fool the test, it does seem
measure comprehension fairly well. In the long run, more complex
accurate computer programs will probably be available to accomplish
Although the Plain English Movement has made
progress in improving the language of consumer documents, there are
types of documents that affect the rights and obligations of the public
are still typically in legalese. These include wills, medical
forms and consents to search, releases of liability, legal notices, and
The movement still has work to be done.
14. COMMUNICATING WITH THE JURY
In a sense, jurors who receive jury
instructions are also
consumers. And like consumers, they do not understand the legal
that is read to them very well.
Confusion and its Consequences
There is a substantial body of research showing that
jury instructions poorly communicate the law to the jury. Revised
raise the level of comprehension significantly. This is an
point, because we cannot expect jurors to follow the law when they do
understand it. Unfortunately, courts are very reluctant to
from tried-and-true instructions which track the language of a statute
have been approved by an appellate court, even if that approval came
decades ago. Judges who try to explain the instruction in plain
typically are overruled. Jury questions about the instruction are
answered by simply rereading the antiquated language of the
Yet legal accuracy is pointless if jurors do not understand the
very well in the first place. Perhaps the only real possibility
reform is the committees that draft pattern instructions in many
Several such committees have indeed tried to improve comprehension, but
has been uneven. Often change is controversial, leading to
of the status quo.
Capital Instructions: Comprehension
As a Matter of Life or Death
Nowhere are the consequences of poor communication
dramatic than in capital cases. Constitutionally, capital juries
have guidance in carrying out their task. Because the guidance
largely in the form of obscure jury instructions, it is often sorely
For example, many state death penalty laws instruct jurors to weigh
and aggravating evidence. But mitigate is a formal word that many
do not understand, and aggravate is a legal homonym: it has an ordinary
(annoy) that differs in an important way from its legal meaning (a
to put someone to death). There is evidence that many jurors do
understand these terms very well, even though they are essential in
whether to recommend the death penalty.
The problem is not just comprehension of individual
A survey by Professor Hans Zeisel found that jurors did not
understand several points conveyed by the Illinois pattern
including the critical point that they were to balance mitigating and
factors. This evidence was offered to the federal courts in the
corpus petition of James Free, a condemned murderer. A federal
court was convinced that Free's jury was indeed confused, and vacated
death sentence. Before the Free case could be appealed, another
on Illinois's death row, the notorious serial killer John Wayne Gacy,
that his jury had received the same instructions and that his
the grounds of the Zeisel survey--should also be set aside. He
in the trial court, and lost again on appeal. Finally, Free's
came before the Seventh Circuit. The court rejected the Zeisel
in part because there had been no control group that received revised
Of course, there is strong evidence that as a general matter, revision
instructions using plain language principles invariably increases
Indeed, a later study using a control group showed that revising the
instructions resulted in significantly better understanding.
Of course, the law is complex; the research into
instructions indicates that the ordinary public will never understand
aspects of it perfectly, even if stated in plain language. But
can and should understand their task much better than they now
Legal language includes some very complex
of an ancient profession. Because legal English itself is not
and is used to attain various goals, our assessment of its usefulness
depend on a large number of considerations. Some of its features
nothing more than time-worn habits that have long outlived any useful
function. Other characteristics arguably serve some function,
as signaling that an event is an important proceeding, or enhancing the
of lawyers as a group, but should be abandoned because they detract too
from the paramount goal of clear and efficient communication. In
other cases, lawyers approach language strategically, actually
obscurity to clarity; obviously, such usage impedes the overall goals
the legal system and its language. More problematic are features
clearly enhance communication within the profession but mystify
Here, we may need to weigh how important it is for the lay public to
the language at issue. In the final analysis, legal language must
judged by how clearly and effectively it communicates the rights and
conferred by a constitution, the opinions expressed by a court, the
embodied in a statute, or the promises exchanged in a contract.
ordinary people may never understand every detail of such legal
our law should be stated as clearly and plainly as it can be.
demands no less.
The appendix includes a selection
of legal texts, including an Anglo-Saxon land grant, a case report in
Law French, a modern will, excerpts from the OJ Simpson jury
instructions, and an original and revised Citibank (plain English)