There is a movement afoot in the legal community to simplify the writing and speech of lawyers. Legalese has been condemned from every quarter, including the U.S Supreme Court. When Justice Antonin Scalia was asked what characterized good legal writing he declared, “Beyond pure literacy, avoid legalese.” He suggested, “a good test is, if you used the word at a cocktail party, would people look at you funny?”
However, Scalia is the same guy who wrote in his dissent of the decision striking down the Defense of Marriage Act that the majority opinion was “legalistic argle-bargle.” Not sure that argle-bargle would pass the cocktail party test. Argle-bargle means “imbroglio,” excuse me it means “fight.”
Legalese has been an increasing object of derision. During World War II, Maury Maverick, a U.S. Congressman from Texas and chairman of U.S. Smaller War Plants Corporation, wrote a memo banning "gobbledygook language.” Maverick’s word has been accepted into the American lexicon. Merriam-Webster defines gobbledygook as “speech or writing that is complicated and difficult to understand.”
To put legalese into context here is what the blog Words to Deeds believes the children’s rhyme Jack and Jill would sound like if written by lawyers: “The party of the second part hereinafter known as Jill … Ascended or caused to be ascended an elevation of undetermined height and degree of slope, hereinafter referred to as ‘hill.’”
William C. Burton, a partner in the New York City law firm of Sagat Burton LLP, has long been an advocate for clear and concise legal writing free from the stylized legal gobbledygook that has been so ingrained in the legal community.
In 1999, Burton established the Burton Awards for Legal Achievement to honor quality legal writing that uses plain and simple language. On the Burton Foundation website, Burton contends, “Legal writing is undergoing dramatic changes. Obscure and turgid writing is being replaced with clear, plain and concise wording.”
Law professor Joseph Kimble of the Cooley Law School has earned two Burton Awards. Kimble debunks the myths that using plain language creates documents that are not professional, precise, or legally accurate. Eliminating the confusion caused by legalese allows readers to more easily understand a document and act on it, Kimble told The Legal News.
What is the big deal about legalese? Nobody reads their mortgage or their credit card agreements. If an individual has a contract to read or understand they bring it to a lawyer.
The greater concern is that opaque language goes beyond contracts and agreements and right to the heart of liberty and freedom. A defendant charged with a crime is entitled to a lawyer — a competent one. The accused is also entitled to a jury of his or her peers and here is where it gets tricky.
Before a jury retires to deliberate the fate of the accused, the judge provides those jurors with instructions to assist in their decision making. Unfortunately, those instructions are legalistic and often difficult to understand.
A report published in The Trial Expert, a publication of the American Society of Trial Consultants, found, “the reading levels of instructions are frequently at or above the twelfth grade, a result that is inconsistent with the average reading level of the American adult.”
The report continued, “Considering that less than fifty percent of adults possess the basic skills and knowledge necessary to read and comprehend moderately difficult reading passages, it’s not likely they are able to synthesize the complex language present in jury instructions.”
That is a mouthful, but simply put — one in two jurors is confused by the language used to help them decide the fate of a fellow citizen.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.