April 06, 2021 REAL PROPERTY, TRUST & ESTATE LAW

Legal Writing: Legalese, Please!

Martin A. Schwartz

Most real estate lawyers are articulate in oral conversation and able to clearly and succinctly express a particular position or thought. And some may even be good novelists.

But when it comes to drafting legal documents, the rule seems to be “legalese, please!” Legalese is a commonly used style of drafting legal documents that consists of torturing the English language for the alleged purpose of clarity and precision but that often results in the opposite. It is a language that relies on the use of archaic terms, poor grammar and sentence structure, and needless repetition.

Typical legal agreements begin with a preliminary statement referred to as “Witnesseth,” continue with several “Whereas” clauses, and conclude with “In Witness Whereof.” Affidavits frequently conclude with the statement: “Further Affiant Sayeth Naught.” One would be hard-pressed to find these archaic terms used in other styles of writing, but they do bear the imprimatur of making a document look “legal” to the same extent as in the age of Robin Hood. Outside of the legal profession, would words like “Witnesseth” pass a computer spell check? Does it add clarity to express some 21st-century concepts using 15th-century language?

Adding to the “legalness” of a document is the inclusion of the “h” words: herein, hereof, hereto, hereunder, and hereinafter. These words, other than “hereinafter,” defy precision because it is never clear whether they are referencing a particular paragraph, section, or the entire agreement. Typically, the use of such language requires the drafter to add a separate definitional section to clarify their meaning because of their latent ambiguity.

The acid test, however, for constructing a “legal” document is the repetition of numbers in Arabic characters and words. Where else would you find a ten-day notice described as “a ten (10) day notice?” This form of repetition appears predicated on the assumption that a typical reader will not be able to discern the meaning of a number unless it is repeated both as a word and in Arabic characters. Where else, other than check writing, is it necessary to employ both numbers and letters?

In dealing with sentence structure, legalese embodies two frequently employed concepts: run-on sentences and repetition. Run-on sentences are frequently accomplished by employing the phrase “provided, however, that.” This linguistic device allows the drafter to join two separate concepts in one extended sentence. In almost all cases, this phrase can be omitted and an independent sentence started without any loss in meaning.

The theory that underpins repetition is that if one or two words are good, six or eight words are better. Why refer to the “provisions” or “terms” of a purchase agreement when you can mention the “terms, provisions, covenants, agreements, representations, and warranties” of the purchase agreement? Rather than adding to the clarity or readability of the document, the use of surplus verbiage bogs down the text and induces reader fatigue.

Another form of repetition frequently used is couplets: two words used in conjunction when a single word will convey the same message. Frequently used couplets include “terms and provisions,” “good and valuable,” “covenants and agreements,” “free and clear,” “each and every,” and “any and all.” Here again, the use of two words when one will convey the same meaning adds nothing to a document but verbosity.

There is a perception among new lawyers, and even among seasoned lawyers, that writing in plain English dumbs down the language of the instrument. This is surely the case in some consumer forms in substituting “I” and “you” for “buyer” and “seller.” But there is a wide gap between using overly simplistic language and employing legalese.

Is there any downside to the use of such language? Ordinary individuals are intended to be bound by legal instruments not otherwise decipherable as written in the English language, and courts have refused to enforce such agreements to the detriment of the drafters.

Beyond the issue of enforcement, why is it necessary to draft documents far removed from common English? Why does the poor use of the English language make a document “legal”?

Dissenting views on the use of legalese have been expressed. In his article “Lawyers Speak ‘Legalese’ for a Reason,” Bo Bingham writes, “‘Legalese’ is one way a skilled lawyer can make a document more concise while also protecting the client from future battles over word meanings.” The Spectrum, October 6, 2015. He concludes by extolling the virtues of using Latin phrases. But legalese is not limited to the use of a foreign language. Rather, we are primarily dealing with the poor use of the English language.

If legalese is criticized by the general public, judges, and many lawyers, why is it perpetuated and so prevalent? A number of factors are involved. Young lawyers, who might otherwise write in plain English, are typically trained by more senior lawyers, who do not. These senior lawyers have been schooled by their predecessors in the art of drafting legal documents. The message is subtly conveyed to younger attorneys that legalese is the appropriate and preferred style for drafting legal documents.

Another culprit is modern document production. Real estate lawyers rarely create new documents ab initio. This would be a time-consuming and expensive process. They either use or are instructed to use a document from a former, similar transaction or, alternatively, search the firm’s document management system for a like-kind document. This results in a self-perpetuating style of drafting with legalese.

Lastly, there is no financial or moral reward for “cleaning up” documents stocked with legalese. The removal process would be time-consuming and expensive in terms of billable hours. It would likely subject any author attempting to draft in simple English to scrutiny for committing too many hours to a time- and dollar-sensitive practice.

So, unless there is some outside force encouraging law firms to move their drafting style into the 21st century, it appears we may be locked in the 15th century for many more years to come. In his article “You Think Anybody Likes Legalese?,” Joe Kimble notes: “The case for plain language is altogether solid. . . . What remains is for lawyers to summon the will and develop the skill to do it.” Michigan Bar Journal, August 2013, at 52–53.

It is incumbent on senior management of law firms to recognize “legal writing” for what it is: poor writing. Lawyers should not get a pass on writing in good English because they draft “legal” documents. If the effort is made to clean up documents in firms’ document management systems, we can hopefully reach the day when legal documents can be read by ordinary mortals.

ABA REAL PROPERTY, TRUST & ESTATE LAW SECTION

This article is an abridged and edited version of one that originally appeared on page 55 of Probate & Property, November/December 2017 (31:6).

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Martin A. Schwartz

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Martin A. Schwartz is a partner in Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida.