Lawyers and priests are a lot alike, one of my friends will frequently contend. He’s completely right, of course. Both lawyers and priests use complicated language to access a higher power. Both use rituals, incantations, and invocations to make the simple seem mysterious and inaccessible. Both work hard to convince their clients of the mysticism and exclusivity of their respective professions. And both wear pretty black dresses, too.Lawyers and priests use complicated language to access a higher power. But is there really any magic?Click To Tweet
Canadian lawyers, in general, have less of an affinity for Latin phrases than our American counterparts, but I still see pleadings from time to time with “res ipsa loquitor”, contracts which use “inter alia” or decisions which cite Latin legal maxims like “de minimus non curat lex”. More common are those famous pairs and triplets like “part and parcel”, “convey and transfer”, and “remise, remit, and release.”
For the longest time, lawyers have done their best to make the simple complex, and then to sell themselves as the only ones who can ensure that the complexity doesn’t bite clients in the ass. It isn’t just clients, though: lawyers also use complex language to look clever in front of other lawyers and the Courts (Protip: It doesn’t work).
Other lawyers use “legalese” out of laziness. “We use that term in the contract because everyone always has,” is the way the argument goes. I once got into a lengthy discussion with a lawyer who was convinced that saying a corporation was “duly incorporated” meant something entirely different than saying a corporation was “incorporated.” End result? He couldn’t tell me what the difference was. My bet is that he wouldn’t have been able to tell me why he uses those famous pairs and triplets scattered throughout his contracts, either.
Another time opposing counsel on a matter was fiercely opposed to my plain language release. He insisted on using the LawPRO standard-form release (it wasn’t a LawPRO file) because if it was good enough for LawPRO it must be the best. Questionable logic, in my view, particularly given that the phrasing in that release probably dates back to sometime in the late-nineteenth or early-twentieth century. Granted, this happened a number of years ago, so maybe LawPRO has a better one now, but at the time I couldn’t figure out why, with their emphasis on clear communications and plain language, LawPRO would have a standard release which uses such antiquated and complicated language.
Precision in language can sometimes mean that we have to use more words when fewer will do. And yes, there are some situations in which what seems like a simple phrase to most people takes on a subtle nuance of meaning when the courts get involved. But the fact is that these situations happen far less frequently than most lawyers believe. More commonly, fewer words are better. Smaller words are better. And too often, a lawyer’s job is to provide clients with professional simplification because some other lawyer has drafted a document believing that complicated language somehow reduces risk.
But it is the use of plain language which reduces risk. Documents which can be easily understood by everyone are much more useful in day-to-day business. Plain language legal documents allow lawyers to focus on advising clients of the implications of the documents rather than wasting time interpreting them. And plain language in client communications reduces the risk of miscommunication, which is a leading cause of claims against lawyers.
I can’t speak for the priesthood… maybe there really is some magic to “In nomine Patris, et Filii, et Spiritus Sancti.” Not so much for law. So take your “Now therefore in consideration of $10 the receipt and sufficiency of which is herein irrevocably acknowledged”, stick it, “finally and conclusively” in a “fit and proper” place.
Around these parts, we’ll stick to plain language.