| Pages in topic: [1 2] > | The plague of legalese Thread poster: Maria Teresa Borges de Almeida
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Another very interesting article published on this week’s “The Economist”, this time on legal writing
“Why legal writing is so awful
Never attribute to malice what can be explained by mere convenience
“The first thing we do, let’s kill all the lawyers,” is one of Shakespeare’s most memorable lines. You would struggle to find such a line in the writings of lawyers themselves—and not just because they would, presumably, disagree. Though some judges... See more Another very interesting article published on this week’s “The Economist”, this time on legal writing
“Why legal writing is so awful
Never attribute to malice what can be explained by mere convenience
“The first thing we do, let’s kill all the lawyers,” is one of Shakespeare’s most memorable lines. You would struggle to find such a line in the writings of lawyers themselves—and not just because they would, presumably, disagree. Though some judges are sophisticated stylists, most legal language is fussy, tangled and incapable of producing anything so pithy. (This is no doubt one reason so many people want to kill all the lawyers.) But do lawyers write that way to impress, to bewilder—or perhaps because they must?
In a study published in Proceedings of the National Academy of Sciences, Eric Martínez and his colleagues from the Massachusetts Institute of Technology and the University of Edinburgh tried to find out. Contracts written in “legalese”, as well as simplified versions conveying identical concepts, were shown to American lawyers and laypeople. It turns out that lawyers struggle with, and dislike, legal language almost as much as their clients.
Legalese is heavy on “centre-embedding”, sentences in which related words are separated by a long insertion, as in “It is understood by artist and company that comprehensive liability insurance, protecting against any claim or demand up to $300,000, including attorney’s fees, related to company’s actions under this venue agreement, shall be purchased and maintained throughout the agreement by company.” This puts a heavy strain on the brain’s working memory. The word “insurance” must be held in the mind while some 20 other words go by before its attendant verb phrase “shall be purchased” arrives.
Another baleful feature of legal writing is jargon: uncommon words like hereinbefore, mala fides and lessor. These mean little more than above, bad faith and landlord. Even if most lawyers and many laypeople know the jargon, the words require more effort to recall than everyday ones.
Given the almost universal disdain for legal language, the obvious question is why it persists. Mr Martínez and his colleagues examined several hypotheses. One was “the curse of knowledge”. This is the idea that many learned people do not know how to write for those less informed than themselves. But the researchers found that the lawyers struggle with legal language too. They found the content of the legalese contracts harder to understand and remember. So did laypeople, of course, but they remembered the simple contracts as well as the lawyers did the complex ones; they understood them almost as well, too.
A more cynical idea was the “it’s just business” hypothesis. This holds that lawyers are intentionally opaque so as to gull clients into paying more for their supposed expertise. But that did not fit the data either, for the lawyers believed their clients would be more likely to sign the simplified contracts than the standard ones.
Perhaps legalese is a form of “in-group signalling”—behaviour used to signal belonging to a group, such as religious iconography or flag-waving at sports events, and aimed at fellow lawyers rather than clients? But the lawyers in the test group said they would be more likely to hire the writers of the simplified contracts than the authors of the traditional gobbledygook.
The most common defence of legalese is the need for precision, says Mr Martínez (who trained as a lawyer before switching to cognitive science). Legal language, in this view, is too important to leave to the imprecisions of ordinary style. But this argument was refuted too: the lawyers who read the simplified contracts rated them just as enforceable as the complex ones.
The researchers were left with a simple conclusion, which they call the “copy-and-paste hypothesis”. Lawyers imitate what previous lawyers have done. After all, a good deal of rote legal work (such as drawing up contracts) can be copied in large chunks from one document to another.
Whatever the reason, changing behaviour will be hard. Experts in legal writing have called for clearer prose for decades. But the plague of legalese persists. Perhaps evidence from outside the profession will help change things—especially if it is written in plain language."
Good reading! ▲ Collapse
| | | | | they can't lose their jobs? | Jun 3, 2023 |
I agree there are two main reasons:
On the one hand they need to showw off their itnelectual prowess and make sure their profession can't be done by anyone that can read. This is particulariliy true in notary legalese. Their whole function in society is based off of the old job of scribes, when only a heppy gew could read and write. To protect this desired title you need to make it incredibly confusing.
On the other hand there's something I noticed in descriptions of crimes an... See more I agree there are two main reasons:
On the one hand they need to showw off their itnelectual prowess and make sure their profession can't be done by anyone that can read. This is particulariliy true in notary legalese. Their whole function in society is based off of the old job of scribes, when only a heppy gew could read and write. To protect this desired title you need to make it incredibly confusing.
On the other hand there's something I noticed in descriptions of crimes and written statements: All the aggravating circumstances according to the (very old) laws are immediately incorporated. Instead of listing the the circumstances in bullet points, magsitrates seem to prefer to make long winding prose reiterating every factor in the beginning of every phrase. Is it quicker? maybe. Does it mage it illegible? yes.
It's not meant for reading anyway. ▲ Collapse
| | | | Daryo
United Kingdom
Local time: 22:14
Serbian to English
+ ...
| The usual quote is ... | Jun 4, 2023 |
Hanlon's razor:
"Never attribute to malice that which is adequately explained by stupidity. "
another variant
"Never attribute to conspiracy that which can be explained by mere incompetence."
As for "this puts a heavy strain on the brain’s working memory", as far as I'm concerned it only shows the limited capacity of some readers' brain’s working memory, NOT that there's anything wrong with the sentence structure of legalese per se. ... See more Hanlon's razor:
"Never attribute to malice that which is adequately explained by stupidity. "
another variant
"Never attribute to conspiracy that which can be explained by mere incompetence."
As for "this puts a heavy strain on the brain’s working memory", as far as I'm concerned it only shows the limited capacity of some readers' brain’s working memory, NOT that there's anything wrong with the sentence structure of legalese per se. Yes, making sense of a sentence meandering over several pages with plenty sub-sub clauses requires some effort. But if you can't make the effort go read something else ...
The only "plague" I can see is "the plague" of laziness.
And it's ALSO the kind of arguments used to advocate that the limited "brain capacity" of Machine Translation algorithms should be accommodated and "MT's life made easier" by feeding it texts reduced to the simplest possible sentences. Fancy that strange coincidence!
[Edited at 2023-06-04 05:29 GMT] ▲ Collapse
| | | | | Translators are part of the problem | Jun 4, 2023 |
Too many of us have a reverence for legalese. If KudoZ is anything to go by, a large proportion of translators are afraid of turning nineteenth-century jargon into plain modern language.
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finnword1
United States
Local time: 17:14
English to Finnish
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| a good example | Jun 4, 2023 |
LEGALESE:
Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceptible, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures.
ENGLISH:
If it's not broken, don't fix it.
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We've had this dialogue and narrative for the last 400 years.
[Edited at 2023-06-05 10:14 GMT]
| | | | Daryo
United Kingdom
Local time: 22:14
Serbian to English
+ ...
finnword1 wrote:
LEGALESE:
Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceptible, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures.
ENGLISH:
If it's not broken, don't fix it.
So ... you would happily write in that style of yours a contract where your money or your future is at stake? In the full knowledge that in case of litigation the judge or the arbiter will be deeply impressed by your innovative style and - damn the jurisprudence - will interpret all the omitted / unclear parts the same way as you assume they should be? It's not as much fun, but you could also try skating over thin ice ...
There are variations from one text to another - some are better written than other - but the main problem most people have with legalese is that you MUST understand at least the basic legal concepts to make any sense of them.
And THAT can not be solved by any kind of "sentence structure simplification". Nope.
[Edited at 2023-06-04 22:13 GMT]
| | | | | 'Plain modern language' - oft obfuscating and obscuring well-known legal terms of art | Jun 5, 2023 |
philgoddard wrote:
Too many of us have a reverence for legalese. If KudoZ is anything to go by, a large proportion of translators are afraid of turning nineteenth-century jargon into plain modern language.
The translator, interpreter or translation agency production manager/ess (doubling as editor, checker or reviewer vs. proofreader) - needs to know what Dickensian and modern-day legal 'jargon' means in the first place and often has / had to be laboriously and tiresomely explained basic legal concepts, including first-year contract and family law terminology.
Legal comprehension is not always a foregone conclusion and apparent to legally - including notarially - unqualified critics who have never taken - let alone passed - an exam or test paper in Anglo-American (or, even more impressively, ProZ-flanker Scots law) legal drafting techniques.
[Edited at 2023-06-06 09:54 GMT]
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Anglo-American lawyers could usefully open their eyes to the way other countries/languages manage very successfully to use plain language in a legal context.
| | | | Anne Maclennan 
Local time: 23:14
Member (2010)
German to English
+ ...
| Specialised professional terminology | Jun 7, 2023 |
There is such a thing as technical language. Legal language is just one example. I have never understood why there is this constant debate over the use of legal language. Perhaps because laypersons read it daily in contracts - sales contracts, employment contracts, product warranties, etc.
If there is this objection to the “specialised” language used by one profession, why are there not similar debates about medical texts or architectural texts, or engineering texts, to give but a few ... See more There is such a thing as technical language. Legal language is just one example. I have never understood why there is this constant debate over the use of legal language. Perhaps because laypersons read it daily in contracts - sales contracts, employment contracts, product warranties, etc.
If there is this objection to the “specialised” language used by one profession, why are there not similar debates about medical texts or architectural texts, or engineering texts, to give but a few examples.
The answer may lie in the fact that we ask our doctors to explain their diagnoses in simpler, layperson’s terms and recognise that they have to use specialised terms, so they can communicate quickly and comprehensibly with other doctors and can cooperate in treatment or research. We do not all design buildings or build bridges, so we do not question specialised use of language in those professions.
Just a thought… ▲ Collapse
| | | | Kaspars Melkis
United Kingdom
Local time: 22:14
English to Latvian
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| Technical language should not be unnecessary impenetrable | Jun 7, 2023 |
Anne Maclennan wrote:
There is such a thing as technical language. Legal language is just one example. I have never understood why there is this constant debate over the use of legal language. Perhaps because laypersons read it daily in contracts - sales contracts, employment contracts, product warranties, etc.
If there is this objection to the “specialised” language used by one profession, why are there not similar debates about medical texts or architectural texts, or engineering texts, to give but a few examples.
The answer may lie in the fact that we ask our doctors to explain their diagnoses in simpler, layperson’s terms and recognise that they have to use specialised terms, so they can communicate quickly and comprehensibly with other doctors and can cooperate in treatment or research. We do not all design buildings or build bridges, so we do not question specialised use of language in those professions.
Just a thought…
Actually in medicine the debate about simpler language is ongoing. Obviously we cannot avoid all technical terms but in many cases the language can be made simpler for the benefit of both patients and healthcare workers.
The example I gave before was the use of blood clot vs. thrombus. In scientific literature the former is becoming more common while some academic decry that use and demand we all use the later. Some current terms can even be perceived offensive such as incompetent uterus. We can simply say uterine insufficiency without the loss of meaning.
A lot of terms in medicine are derived from Latin. Peculiarly, in the UK doctors don't study Latin at all unlike other countries where the use of Latin terms are even more common than in English. In my native country even active substance names are printed on packaging in Latin which patients can barely read and does not improve communication at all. There is no need for that as all active substance names can be safely translated into local language. It is probably not done because pharmacists want to retain the aura of having a special knowledge not attainable to lay persons.
Not so long ago, in many countries it was even forbidden to explain to patients how the prescribed drug works. We have changed our views since.
| | | | finnword1
United States
Local time: 17:14
English to Finnish
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| Caterpillar Technical English | Jun 7, 2023 |
Tech writers at Caterpillar are prohibited from using pronouns like this, that, it, etc. The reason is that, although a sentence might be perfectly clear and unambiguous in its English form, it may not be so when translated into countless foreign languages in Caterpillar manuals. So you may see a sentence like "remove screen 5, clean screen 5, and install screen 5 back", instead of "remove screen 5, clean it, and install it back. Caterpillar Technical English writing rules were developed at Carn... See more Tech writers at Caterpillar are prohibited from using pronouns like this, that, it, etc. The reason is that, although a sentence might be perfectly clear and unambiguous in its English form, it may not be so when translated into countless foreign languages in Caterpillar manuals. So you may see a sentence like "remove screen 5, clean screen 5, and install screen 5 back", instead of "remove screen 5, clean it, and install it back. Caterpillar Technical English writing rules were developed at Carnegie Mellon University. Translators in some cases are allowed some freedom to make the text more fluent in their target languages. ▲ Collapse
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Daryo
United Kingdom
Local time: 22:14
Serbian to English
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philgoddard wrote:
Too many of us have a reverence for legalese. If KudoZ is anything to go by, a large proportion of translators are afraid of turning nineteenth-century jargon into plain modern language.
A lot of legal jargon dates from the time of the Roman Empire, so it was already "very old jargon" even centuries ago.
Translators who translate exactly what's in the source text in the way adapted to the intended target audience are really a big problem!!! Why would anyone do that? High time to do something about it, surely?
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Daryo wrote:
Translators who translate exactly what's in the source text in the way adapted to the intended target audience
I don’t follow what you mean here🤷♂️
| | | | Daryo
United Kingdom
Local time: 22:14
Serbian to English
+ ...
| Let me give an example ... | Feb 3 |
Christopher Schröder wrote: Daryo wrote:
Translators who translate exactly what's in the source text in the way adapted to the intended target audience
I don’t follow what you mean here🤷♂️
I was under the impression that the concept of "target audience" is part of the basics of translating, but maybe it's lumped together with "context" and cheerfully ignored rather too often?
Here is is an example, never mind that I feel like stating the blindingly obvious:
If you had to translate a maintenance manual for a jet engine, would you be worried about Joe public not being capable to understand half of it? Or would you be careful to use terminology that is familiar to experts in jet engine maintenance?
[Edited at 2024-02-05 09:03 GMT]
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