LEGAL WRITING Legalese is the writing style used by attorneys and legal scholars when communicating about legal

matters in documents ranging from contracts to scholarly papers. It is an example of technical writing, a type of writing used by people in a specific profession to communicate with other members of the profession. Like other technical writing, legalese can be difficult for laypeople to understand because it assumes a certain level of knowledge with legal concepts and the legal system. This is criticized by some people in the case of communications that members of the public will have to interact with, like sales contracts. Several features can be seen in legalese. The first is the very careful word use. In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren't familiar with the law, as ordinary words can have a different meaning in a legal context. For example, seemingly redundant phrasing actually isn't, when the legal meanings of the phrase are considered. Legalese also includes a number of professional terms, including Latin terms, although there has been a push in some areas of the legal community to replace Latin with plain language for clarity. Legal documents also rely heavily on sourcing and citation, showing a legal basis for all of the statements being made. Precedent, the established and accepted component of legal practice, is an important part of law and legal documents that do break precedent must still include substantial supporting arguments for the break with tradition. This form of writing also tends to be highly formal. The formality is in part a result of the careful word choices and phrasing used, and in part a convention of the legal profession. Other technical writing also tends to formality, as people tend to be taken less seriously when they write informally or colloquially. Members of the legal profession do occasionally break with tradition; several Supreme Court justices, for example, have written opinions incorporating rhyming couplets and other whimsical inclusions. In some regions, consumer advocacy organizations have argued for the replacement of legalese with plain text in documents read by members of the public. This is in response to concerns about people who sign contracts and other legal documents without fully understanding their meaning. A legalese to plain text translation of a sort is recommended in some settings, allowing lawyers to draft a legally enforceable contract while including a clear explanation understandable to laypeople so they know what they are agreeing to by signing the contract.

Understanding Latin Legalese By Clifford A. Hull, Steven R. Perkins, and Tracy Barr from Latin For Dummies Most lawyers love to throw around Latin phrases. The reason for this is that ancient Rome's legal system has had a strong influence on the legal systems of most western countries. After all, at one time, the Romans had conquered most of Europe, the Middle East, and North Africa. The Roman motto was divide et impera (dee-vee-deh eht im-peh-rah) "divide and conquer." As they conquered nations, they set out to "Latinize" the "barbarians" (anyone

who wasn't Roman). Their goal was to teach them how to think, act, and be like real Romans. As the Roman Empire slowly crumbled and disappeared, the new orders in all these lands gradually adapted the existing legal system. England (and most of its former colonies) and the United States of America use a variation of the old Roman law called "Common Law." This is why lawyers today love those Latin phrases! (Well, that and the fact that you can't get out of law school without mastering them.) This article gives you the information that you need to make sense of what your lawyer, judge, or parole officer is saying. Knowing what a sentence or phrase, like "The case is now sub judice (subyou-dee-kay)" or "What you are proposing is contra legem (kon-trah lay-ghem)," means, can help even when you're just watching Court TV or The Practice. English legal terms are full of Latin words and phrases. Several of these terms are so common, you use them today without any problem or confusion. Take these words for example:

Alibi (ah-lee-bee; elsewhere, at another place). If you're asked to provide an alibi for your whereabouts, you know that you need to tell where you were when a crime occurred to prove that you couldn't have been the one who did the awful deed. Alias (ah-lee-ahs; at another time, otherwise). Today, alias often refers to an alternative name people generally use to conceal their identity. "John Smith alias Henry Taylor alias Clyde the Hustler" means John Smith is otherwise known as Henry Taylor who is otherwise known as Clyde the Hustler. per se (purr say; by itself). Also meaning "as such" in English usage, per se is used casually in English conversations: I didn't call him stupid, per se. I simply said he had plenty to learn. versus (wer-soos; turned). Often abbreviated as vs., the more common English meaning is "against" or "in contrast to": In the case Roe versus Wade, privacy in cases of abortion was an issue.

Table 1 lists other common Latin words used in English courts and legal proceedings. (Keep in mind that the pronunciation here shows how the Romans would have pronounced these words.) Table 1: Common Latin Words Used Today Word affidavit bona fide Pronunciation uhf-fee-day-wit boh-nuh feeday ha-bay-uskorpus Original Meaning he pledged (in) good faith Modern Meaning a sworn, written statement sincere, genuine

habeas corpus

may you have the body

bring a person before a court

per diem pro bono status quo

pur dee-em pro bo-no stuh-toos kwo

per day, by the day for the good the existing condition or state of affairs under the penalty

daily done for free for the public good how things are currently

sub poena

soob poi-na

an order commanding a person to appear in court under a penalty for not appearing

The following sections offer more Latin words used in courts today. Like the preceding words, you may have heard many of these words already; you may even be using them without knowing what they really mean. Don't worry. Many of those using them don't know either. Common courtroom Latin Many of the terms that lawyers and other legal folk use have come down to us in their original Latin forms. Table 2 lists some of the more common Latin words that are still used today. The following list has even more examples:

ex officio: This word would appear in a Latin sentence such as the following:

Imperator erat ex officio quoque dux exercitus. eem-pe-ra-tawr e-rut eks off-ee-kee-oh kwo-kwe dooks eks-er-key-toos. The emperor was by virtue of his position also the leader of the army. Today, you see or hear this word in a sentence like this: The headmaster of the school is ex officio also a member of the school board.

persona non grata: This word would appear in a Latin sentence such as the following:

Post caedem Caesaris, Brutus erat habitus persona non grata Romae. post ki-dem ki-sa-ris, broo-tus e-rut ha-bee-tus per-sow-na non gra-ta rom-igh. After the assassination of Caesar, Brutus was regarded a persona non grata in Rome. Today, you see or hear this word in a sentence like this: After his conviction for embezzling funds, John was treated like a persona non grata by his former colleagues. You can hear these words and other words (shown in Table 2) in many places particularly on TV or in the movies. They're common enough that the audience can get the idea of their meaning and still follow the story line, but they're obscure enough to make the actors sound like experts in the law. (In the movie Silence of the Lambs, did you know what Hannibal "The Cannibal" Lechter means when he says to agent Starling, "Quid pro quo, Clarese. Quid pro quo"? If you look at Table 2, you will!)

Table 2: Latin Words Used in English Courts Word Pronunciation Original Meaning to this body of the crime from the fact from the law forever Modern Meaning

ad hoc corpus delicti de facto

ad hok kor-pus de-licktee day fak-toe

for a specific purpose, case, or situation material evidence in a crime

in reality; actually; in effect

de iure ad infinitum

day you-ray ad in-fee-neetoom in ab-sen-tee-ah

according to law; by right Forever

in absentia

in (his/her) absence in a room in the place of a parent by the fact itself scene of the crime mode of working I do not wish to contend

in (his/her) absence

in camera in loco parentis ipso facto

in ka-me-rah in lo-ko pa-rentis eep-so fak-toe

in private; no spectators allowed in the place of a parent

by that very fact

locus delicti

low-koos daylick-tee moh-dus o-perun-dee no-lo kon-tende-re

scene where a crime took place

modus operandi nolo contendere

method of operating

a plea by the defendant that's equivalent to an admission of guilt (and leaves him subject to punishment) but allows him the legal

option to deny the charges later prima facie pree-mah fahkey-ay pro for-ma at first face at first sight

pro forma

for the sake of form this for that

done as formality, done for the show

quid pro quo

kwid pro kwo

something for something; tit for tat; an equal exchange

Less common Latin phrases We often refer to the language that lawyers use as legalese because it has so many Latin phrases and words. Table 3 lists a few of the less common Latin phrases that you're likely to hear only if you or someone you know actually ends up in a court of law. Table 3: Other Latin Legal Terms Word a mensa et toro casus belli cui bono (in) flagrante delicto inter alia mutatis mutandis Pronunciation ah men-sa eht torow ka-soos bel-lee coo-ee bo-no in fla-gran-tay daylick-toe in-ter ah-lee-ah moo-tah-tees mootun-dees Original Meaning from table and bed Modern Meaning legal separation

occasion of war for whom the good while the crime is burning among other things having changed what must be changed not of sound mind

an event that justifies a war whom does it benefit? red-handed, in the act

among other things after making the necessary changes

non compos mentis

non kom-posmentis

mentally incompetent

obiter dictum

oh-bee-terdeektoom

something said in passing

something a judge says in arguing a point, but has no bearing on the final decision burden of proof

onus probandi pendente lite res ipsa loquitur sine qua non sine die sub judice ultra vires

oh-nis pro-bun-dee

burden of proving

pen-den-taylee-tay

while judgment is pending the matter itself speaks without which not

a case in progress

rays eep-sa lokwee-tur see-nay kwa non

it goes without saying

an indispensable condition; a prerequisite postponed indefinitely pending judgment outside one's jurisdiction

see-nay dee-ay sub you-dee-kay ool-trah wee-rays

without a day under the judge beyond strength

Legalese 1. Do not use legal jargon in an effort to "sound like a lawyer." There are many words and phrases one might associate with legal writing but which have a tendency to obscure the meaning of a sentence. Although you will see that some of these words are used by judges and authors of legal texts, particularly in older texts, you should not use them yourself. The rule of thumb of modern legal writing is that a lawyer's language, whenever possible, must be clear and concise enough to be understood by a lay client. Do not use so-called legal terminology unless general terminology would be less precise. Undesirable: As stated heretofore, the landlord's conduct created, caused, and resulted in serious bodily harm and massive injuries, to wit: a broken and mangled left leg, lacerations to the aforementioned leg, and several broken digits on the foot attached to said leg, in witness whereof was the spouse of the injured party.

Better: As stated, the landlord inflicted serious injuries on the tenant, including a broken left leg, lacerations to that leg, and several broken toes on the left foot. The altercation was witnessed by the tenant's spouse. 2. Do not use long introductory (throat clearing) phrases that add no special meaning. Use of phrases such as "the defense contends" and "it is important to emphasize that" generally add no substantive meaning to a sentence. Making matters worse, they prevent the reader from quickly reaching the important part of the sentence and may result in a loss of emphasis. As a general rule, one should get to the important point quickly. Undesirable: The plaintiff contends that the landlord caused her injury by leaving a large ditch in the backyard. Better: The landlord injured the plaintiff by leaving a large ditch in the backyard. Of course, if you wish to emphasize that this is only a contention, not a fact, then the first usage is acceptable. However, if you represent the plaintiff, it does your client a disservice to suggest this is only a contention. If it's a fact, state it without introduction.

3. Do use well-understood terms of art if they are more precise than general terminology and if you are writing to a professional audience. The beginning law student will have difficulty knowing when a term of art is likely to be well understood, as they all are new to the beginner. However, as time progresses, new law students will develop an easy familiarity with terms of art and the decision whether to use them will be less difficult. Undesirable: In this case, which involves a group of corporate directors who failed to properly represent the interests of the shareholders, the plaintiffs can not bring their claim in federal court because the plaintiffs and defendants were all citizens of the same state and the only issues to be tried were matters of state law. Better: In this case, involving the breach of fiduciary duties by corporate directors, the plaintiffs can not proceed in federal court because there is neither diversity of citizenship nor any federal question. In the preceding example, the terms "fiduciary duties," "diversity of citizenship," and "federal question" are terms of art likely to be understood by any practicing attorney or judge. Their use would therefore be appropriate in writing a memorandum to a supervising attorney or a brief to a judge, but might not be appropriate in a letter to a lay client. Legalese is a secret language invented to trick you. It uses English words but attaches secret meanings to those words with the sole intention of stopping you believing that what they are saying to you has nothing to do with the normal meaning in the English language. Their purpose is to cheat you and rob you.

For example, they will say to you "Do you understand?". In English, that means "Do you comprehend what I am saying to you?" and the automatic response would be "Yes", meaning "I do comprehend what you are saying to me". But these sneaky, underhand people have changed the meaning in Legalese to mean "Do you stand under me?" meaning "Do you grant me authority over you so that you have to obey whatever I tell you to do?". A Brief History of Legalese: How is it that people who are brought up speaking the same language as anyone else in their country come out of law school writing sentences that cannot be understood by anyone other than themselves? Many experts believe that legalese has its roots in the the Battle of Hastings in 1066, which lead to the Norman conquest of England. After the conquest, Norman French found its way into English courts. English lawyers were unsure as to whether a French word had the same meaning in English, and thus began to include both words in contracts to be on the safe side. This lead to phrases still in use today, such as right, title, and interest, where right and title are English, and interest is French, and breaking and entering, in which the English word breaking is paired with the French word entering. This cross-channel linguistic mashup begat ever more convoluted phraseology as it was passed from generation to generation of lawyers.