This article was written by Martin A. Schwartz, Partner at the law firm Bilzin Sumberg, and is reprinted here with his permission. His primary area of focus is Real Estate law and he can be reached at 305-350-2367 or mschwartz@bilzin.com
Peter Morris’ comments: As someone who must read, and interpret, leases and purchase and sale documents daily I agree with him. I add the word “interpret” because of the ambiguity in most documents. In some cases, the drafter of the document inserts words specifically so the true meaning of the concept can be read in multiple ways. I call these ‘wiggle words’, and I root these out for my clients whenever possible. Three (3) Cheers for Martin for his clear thoughts on this matter in his article that starts now.
Each
profession has its own jargon but most professions rely on modern English as
their base. Real estate and other transactional lawyers, those who draft legal
documents, seem to be the exception. This is a strange phenomenon since most
litigators, those attorneys who write only for fellow lawyers (i.e.,
judges), seem to have little problem writing in modern English. However, most
real estate and other transactional lawyers whose work-product involves
nonlawyer parties, usually find it difficult to express their thoughts in
modern English. Instead, they rely on a strange language referred to as
“legalese” to convey their message.
Merriam-Webster
defines
“legalese” as follows: “the language used by lawyers that is difficult for most
people to understand; legal jargon.”1 The Oxford Guide to Plain
English describes it somewhat differently:
“Fog in
the law and legal writing is often blamed on the complex topics being tackled.
Yet when legal texts are closely examined, their complexity seems to arise far
less from this than from unusual language, tortuous sentence construction, and
disorder in the arrangement of points. So the complexity is largely linguistic
and structural smoke created by poor writing practices.
“Legalese
is one of the few social evils that can be eradicated by careful thought and
disciplined use of a pen. It is doubly demeaning: first it demeans its writers,
who seem to be either deliberately exploiting its power to dominate or are at
best careless of its effects; and second it demeans its readers by making them
feel powerless and stupid.”2
William
Safire, a former op-ed columnist with The New York Times, describes it
more humorously: “[L]egalese often has the virtue of eliminating ambiguity,
and should be read more as a mathematical equation than as prose, anything
herein to the contrary notwithstanding.”3
Legalese
is a language that relies on archaic language, poor grammar and sentence
structure, repetition, surplus language, and legal jargon. The predicate for
use of legalese seems to be that the parties will be represented by attorneys,
and their attorneys will understand the documents even if their clients cannot.
Although such an assumption may assist in promoting legal employment, it
appears no more defensible than having legal documents written in Arabic in
reliance on the parties using persons familiar with Arabic to explain the
contents of the documents to their clients. Since legal documents will govern
the rights and obligations of the parties for whom they are written, it seems
only proper that such parties should be able to read and understand them. The
use of legalese has been criticized by the courts: “[This is a] document
checked full of legalese that can make a Byzantine scholar proud.”4
Some
legalisms seem to be going out of vogue. Does anyone use “the party of the
first part” and “the party of the second part” to reference the parties to an
agreement? Use of these terms allows the drafter to avoid identifying the
parties throughout the document, but to an untrained reader, it may be unclear
which party is obligated to which obligations under the agreement.
Other
terms seem to have survived the transition from the age of the bow and arrow to
that of automatic weapons. Many drafters continue to use terms like
“witnesseth” and recitals preceded by the term “whereas.” Frequently, last
paragraphs in agreements conclude with “In witness whereof.” One may well
wonder if such drafters think it is essential their documents look like legal
proclamations intended to be admissible in the English courts of the 14th
century or be in a form sufficient to be affixed to the nearest tree. And what
about title affidavits that conclude with the phrase “further affiant sayeth
naught”? This last phrase adds nothing to the affidavit that a period at the
end of the preceding sentence would add, but it does perhaps provide the
drafter with the comforting feeling that the affidavit is a “legal document.”
Attorneys
do not seem to question why is it necessary to use language from the age of
Shakespeare to express their thoughts. Such archaic language is nowhere else
found in modern writing, and it surely does not improve the readability of the
document in which it is contained.
Another
tenet of legalese involves repeating numbers with Arabic characters and in
words. It might not be necessary to provide for “a ten (10) day notice” rather
than “a 10-day notice” but a reader seeing both the character and word will
appreciate that he or she is reading a legal document. This has been referred
to as the “stupid reader syndrome” since it appears to be predicated on the
assumption that the reader will not be able to understand a number if it is
only mentioned once. A danger, however, of this needless repetition sometimes
appears in documents when the character and word do not match, e.g., “ten (15)
day period,” which presents an interpretive problem as to which number is
correct. This needless repetition is so engrained in the legal vocabulary that
a request to a legal secretary to transmit two copies of a survey will appear
as “enclosed are two (2) copies of the survey.”
Perhaps
the hallmark of a legal document is the inclusion of “h” words. The words
“herein,” “hereto,” “hereof,” and “hereinafter” are the staples of drafting in
legalease. 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. You will not see these words used in common parlance or
even in nonfiction writing except perhaps the use of “hereinafter” referencing
an existence beyond the grave. But these words are typically liberally
sprinkled throughout a document serving as a beacon to identify the document:
“This is a legal document!”
Another
frequent device for drafting in legalese is the use of the expression
“provided, however, that….” This phrase serves to introduce an exclusion to the
immediately previously expressed idea. Although one may substitute a period for
this entire phrase and follow with the start of a new sentence with the same
effect, the use of this term allows the draftsperson to establish his or her
credentials as a lawyer and, as a side benefit, permits drafting run-on
sentences galore. One can test the elimination of this phrase by substituting a
period before “provided, however, that…” and determine its absence has no
effect on the meaning of the paragraph but only serves to increase its
readability.
Legalese
embraces repetition: one word is good; six words are better. Why refer to the
“provisions” or “terms” of an agreement when you can mention the “terms,
provisions, covenants, agreements, representations, and warranties” of an
agreement? Would anyone without legal “training” think that the terms of an
agreement would not include any representations, warranties, or covenants in
the agreement? I think not, but verbosity is a preferred drafting technique.
Another
form of repetition frequently utilized 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.” Many
attorneys sprinkle these liberally into their drafting so the reader will
understand the document was drafted by a lawyer.
Related
to repetition is the inclusion of unnecessary extra language. In referring to
exhibits and schedules in a document, the drafter will frequently qualify such
exhibits or schedules with the phrase “attached hereto and incorporated herein
by reference.” It is not clear whether such a phrase has any legal effect.
Would a reader think that an exhibit or schedule appearing at the end of a document
and referenced in the document might be a stapling error? That is, it was never
intended to be part of the agreement. Or that such documents were merely
attached to the document to increase its length?
The use
of legalese is perpetuated by reuse of form documents replete with legalese.
New lawyers instructed to use form documents are inculcated into the use of
archaic language, repetition, and run-on sentences. It has been noted that
there is no economic incentive to “clean up” these documents by spending extra
time merely for the sake of readability.5 Even lawyers conscious of
the use of legalese frequently avoid removing such language in the haste to
produce a document for distribution. Will Rodgers famously noted, “If I had
more time, I would have written a shorter letter.”
There is
a perception among new lawyers, and even among seasoned lawyers, that writing
in plain English dumbs down the language of the instruments. This is surely the
case in some consumer forms in substituting “I” and “you” for “buyer” and
“seller.” However, in response, it has been noted that:
“[W]riting
in plain English need not mean giving up sophisticated use of language and
affecting a chatty informality. On the contrary, it requires sophistication to
produce documents that are consistently coherent, clear and readable. By
contrast, this “specialized tongue” of lawyers, “legalese,” may even be easier
to write because it relies on convention instead of thought. At best, however,
the result is wordy, pompous, and dull. At worst it is unintelligible.”6
Does
legalese really improve the content? As an example of how legalese affects
readability, below are two short paragraphs. The first is written in English
and the second re-written in legalese.
Jim had
the flu and went to see Dr. Jones. The doctor told Jim he would be better in 10
days if Jim stayed home, drank liquids, and slept for eight hours each night.
If his condition did not improve by the end of 10 days, the doctor said he
would prescribe antibiotics.”
Jim had
the flu (hereinafter referred to as the “Disease”) and went to see Dr. Jones
(hereinafter referred to as the “Doctor”) and the Doctor told Jim that Jim
would be better in ten (10) days, provided, however, that (i) Jim stayed home,
(ii) Jim drank liquids, and (iii) Jim slept eight (8) hours each night
(hereinafter collectively referred to as the “Remedial Conditions”) and
provided further that if by the expiration of said ten (10) day period and full
and complete fulfillment of the Remedial Conditions the Disease was not fully
or partially abated to the full and complete satisfaction of the Doctor, in the
Doctor’s sole and unfettered discretion, then the Doctor would prescribe
antibiotics.
In a
survey in 1988 sent to 1,116 Florida judges and lawyers selected at random that
contained six phrases written in two different styles without identifying
legalese but only a “test of language trends in the legal profession,” the
preparer of the survey received 628 responses: 352 came from judges and 279
from lawyers. The judges preferred plain English in 86 percent of their
responses and the lawyers in 80 percent.7
The
courts have been critical of the use of legalese.8 Is there any
downside to use of such language? If ordinary individuals not represented by an
attorney are intended to be bound by legal instruments not otherwise
decipherable as written in the English language, courts have refused to enforce
such agreements to the detriment of the drafters.9
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 with run-on
sentences and unnecessary repetition make a document legal? In surveys
of judges and attorneys, the overwhelming percentage of respondents opted for
plain English over legalese.10
Any real
estate attorney believing use of legalese is benign should be ordered to review
and decipher language appearing in many securitized financing documents. There
are numerous examples in such documents when one sentence can run an entire
page.11 It is frequently impossible to understand the content of any
provision with a single reading.
Consumer
groups have been struggling for years to require consumer documents to be
written in plain English. Since the world outside of the legal profession
operates using plain English, it is difficult to justify using a different
language to create enforceable legal rights and obligations. In some cases, the
reward for using legalese is an unenforceable agreement.12
1 Merriam-Webster’s Learner’s
Dictionary, “Legalese.”
2 Martin Cutts, Oxford Guide to
Plain English (3d ed. 2009).
3 William Safire, Safire’s
Political Dictionary (Rev. ed. 2008).
4 In Re Benninger, 357 B.R.
337 (Bankr. W.D. Pa. 2006). See also Gelinas v. State, 398 S.W. 3d 703
(Tex. Crim. App. 2013) (Cochran concurring opinion) (“These instructions are
100 [percent] legalese. They make no sense.”).
5 See Hills, Why Contracts are
Written in “Legalese,” 77 Chicago-Kent Law Rev. 58 (2001).
6 Barbara Child, Language
Preferences of Judges and Lawyers: A Florida Survey, 64 Fla. B. J. 32 (Feb.
1990).
7 Id.
8 State of Wisconsin v. Eason, 629 N.W.2d 625 (Wisconsin Sup.
Ct. 2001) (dissenting opinion) (“The warrant and affidavit replete with terms
normally found in attorney-drafted documents including “whereas,” “curtilage,”
“to-wit” and other such similar terms. . . . Indeed law students have been
taught for at least the last 50 years to avoid this kind of legalese.”); But
see Bo Bingham, Lawyers Speak “Legalese” for a Reason, The Legal
Lowdown (Oct. 6, 2015),
http://www.thespectrum.com/story/life/features/mesquite/2015/10/06/lawyers-speak-legalese-reason/73460860/
(discussing the virtues of legalese).
9 See In Re Benninger, 357
B.R. 337.
10 See Kimble & Prokop,
Jr., Strike Three for Legalese, Michigan B. J. 40 (Mar. 2014); Barbara
Child, Language Preferences of Judges and Lawyers: A Florida Survey, 64
Fla. B. J. 32 (Feb. 1990).
11 For example: “‘Certificateholder’: With respect to any Certificate,
the Person whose name is registered in the Certificate Register (including,
solely for the purposes of distributing reports, statements or other
information pursuant to this Agreement, Beneficial Owners or potential
transferees of Certificates to the extent the Person distributing such
information has been provided with an Investor Certification by or on behalf of
such Beneficial Owner or potential transferee); provided, however, that, except
to the extent provided in the next proviso, solely for the purpose of giving
any consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Operating Advisor, a manager of
a Mortgaged Property, a Mortgagor or any Person known to a Responsible Officer
of the Certificate Registrar to be an Affiliate of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the
Operating Advisor, a manager of a Mortgaged Property or a Mortgagor shall be
deemed not to be outstanding and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent or take any such action
has been obtained; provided, however, that for purposes of obtaining the
consent of Certificateholders to an amendment of this Agreement, any
Certificate beneficially owned by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator, the Operating
Advisor or an Affiliate of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator or the Operating Advisor
shall be deemed to be outstanding, provided that if such amendment relates to
the termination, increase in compensation or material reduction of obligations
of the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Operating Advisor or any of their Affiliates, then
such Certificate so owned shall be deemed not to be outstanding; provided,
however, if the Master Servicer, the Special Servicer or an Affiliate of the
Master Servicer or the Special Servicer is a member of the Controlling Class,
it shall be permitted to act in such capacity and exercise all rights under
this Agreement bestowed upon the Controlling Class; provided, further, if an
Affiliate of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Administrator or the Operating Advisor has provided an
Investor Certification in which it has certified as to the existence of an
Affiliate Ethical Wall between it and the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Administrator or the Operating
Advisor, as applicable, then any Certificates beneficially owned by such
Affiliate shall be deemed to be outstanding.”
12 See Paladino v. Avnet
Computer Techs, 134 F.3d 1054 (11th Cir. 1988); Nicosia v. Wakefern Food
Corp., 136 N.J. 401, 643 A.2d 554 (N.J. 1994).
This
article was first published in the April 2017 issue of The Florida Bar
Journal, Volume 91, No. 4.