Consumers aren't the only ones who have a hard time understanding lawyers. Judges find it difficult to understand them too.
That, at least, is one conclusion of a research project published earlier this year in the Loyola Law School Law Review.
In the empirical study, conducted by Loyola law professor Robert W. Benson and lawyer Joan B. Kessler, a former speech professor at Cal State Northridge, 10 California appellate judges and 33 of their research attorneys reviewed two versions of legal briefs--one written in traditional legal language and the other in plain English--and were asked to comment on the writing.
Their answers were not surprising, especially to anyone who has ever tried to decipher a will, a statute or a consent-to-surgery form. They didn't like what they read when it was in legalese. The legalese was perceived as poor in quality, incomprehensible, unpersuasive and written by lawyers who worked for low-prestige law firms.
What is legalese? Benson and Kessler identify some of the "linguistic peculiarities" of legalese: wordy, misplaced phrases; long, multisyllabic words; pompous tone; using legal terms of art and Old English.
From my personal experience, I can add some other complaints about legalese: sentences that seem to never end; use of Latin when English will do; overcomplicating even the most simple concepts and relying without too much thought on standardized language that some lawyer used in the past (and so it must be right).
A Befuddled Judge
It's no wonder even the judges were not impressed. As one judge told the authors, after hearing cases before the Court of Appeal: "I read briefs prepared by very prominent law firms. I bang my head against the wall, I dash my face with cold water . . . and still the message does not come through."
In their study, the authors used actual documents filed in court and then rewrote them in simplified, plain English. Try to wade through this 79-word sentence of legalese:
"The trial court erred in giving flawed essential elements, instructions to the jury and thereby denied the defendant due process and fundamental fairness since it is error to give the jury, within the essential elements instructions, one statement containing more than one essential element of the crime and requiring of the jury simple and singular assent or denial of that compound proposition, fully capable of disjunctive answer, which, if found pursuant to the evidence adduced would exculpate the defendant."
Another way of saying the same thing, in understandable language, can be done in three short sentences: "The trial judge erred by instructing the jury to answer yes or no to a single question that contained more than one essential element of the crime. By joining all the major elements together in one question, the judge denied the defendant due process. He had a right to be freed if the jury found him innocent of any one element."
Some lawyers use legalese because they are lazy; it takes much longer to write clear, understandable prose than to regurgitate standardized legalisms. Others use legalese to maintain the mystery of the law, keeping themselves part of a high priesthood of practitioners who are able to charge high fees and impress their clients with their specialized knowledge. Like any professional with extensive training and education, many lawyers simply feel more comfortable using the language they learned in law school. They assume other judges and lawyers will understand them.
But if this survey is right, maybe they're wrong.
The Neighborhood Justice Center, a public-service project of the Los Angeles County Bar Assn., is offering beginning, intermediate and advanced mediation workshops ranging from $140 to $200. The beginning workshop is Saturday. For more information, contact Loretta Francesco at (213) 451-8192.