Many lay persons shy away from reading about the law because, as they claim, there are too many unfamiliar and ‘big words” in the law. The words and phrases, which give laypersons that degree of difficulty and fear, are often referred to as legalese. Legalese is comprised of a combination of archaic terms, redundancies and awkward phrases. Some people believe that legalese is placed in contracts to confuse the client, so that many enter into contract depending heavily and placing great trust in their lawyers.
The Online Dictionary describes legalese as the formal and technical language of legal documents. Legalese can be found in legal writing such as contracts, licenses, court pleading, summons, briefs, treaties, wills and judgments, among others.
There are some distinctive features of legalese. The writing is formalistic and stiff with long words and long sentences conveying multiple ideas. Some of the words are derived from other languages. Latin was in earlier times important in legal writing in Britain because of the influence of the Roman legal system. The Romans had conquered many places in Europe and had established their rule and therefore their laws. With the Norman conquest of Britain in 1066, the French language gained prominence and was broadly used in the culture, education and law. The French practice of placing the noun in front of the adjective remains, for example, attorney general, and fee simple (in real property). The law then had three languages from which to draw words and phrases.
Legal writing has been criticized for being wordy (surplus verbiage) with words such as whereas, wherefore, hereinbefore, herein, among others.
It may be said that words from several languages should make the language clearer, but this has not been the case. One writer claims that legalese serve lawyers more than the clients, as the clients are not so concerned about language, but more about results.
I remember asking a judge who went to a judges’ workshop what was the single most important thing he had brought away from that workshop. He said that he learnt that a judgment should be so simple that a 14-year-old could read and understand it. There is no doubt that there is a desire for simple writing or plain language. Many people feel that legalese should be eliminated and writing should be concise, clear and unambiguous, and that there should be standard grammar and punctuation.
Even though there is a concerted effort to write simple language in legal documents, it is difficult to remove certain words, because those foreign words have had a long tradition and have become fixtures in legal writing. There is no replacement for words and phrases such as res ipsa loquitor, the thing speak for itself, prima facie (at first sight), modus operandi (method of operating) de facto (in reality) ad infinitum (forever), among others. Legalese has given a distinctive feature to law. Fortunately it is mostly used in writing. Lawyers speaking to jurors cannot speak above their heads and must use simple language if they hope to persuade them and win them over.
The law is not the only subject area with “big words”. It is noteworthy to mention that there are some lengthy words in science, especially medicine and this may be because of the specialty nature of the subject area. Words in medicine often include the name of the component elements to identify the item or they may be given the name of a process by using the name of the person who made the discovery.