This is the first of a couple of articles which will look at how lawyers write. It is not about “legal writing”, nor is it about “legalese”. We’ll be looking at some commonly used words and phrases, we’ll think about why they have been used, what they might mean, and what could have been written instead.
For a number of years we’ve kept a list of words and phrases that have been found in letters from lawyers, in documents, emails and other places. It is a much longer list than it should be. It’s a source of constant wonder that some of these words and phrases are used at all, let alone regularly. But let’s first look at why this is important (or even interesting) at all.
A lawyer’s role is be an adviser or an advocate for its client (or customer if we look to keep things simple). So a lawyer is a hired hand, helping its customer through a situation that the customer couldn’t deal with as well on its own.
If that’s the case then it would be fair to think that the customer should be able to understand the advice that the lawyer provides, or be able to follow what the lawyer is saying when “advocating” for that customer. However that doesn’t always seem to be what happens. Lawyers are often described as being hard to understand, and that “legalese” is a difficult language all on its own.
As a young lawyer one of the most valuable early lessons Iearned was from a partner criticising an “opinion” I’d written. Legalese creeps in straight away – an opinion is a written piece of advice designed to advise a client of the law, and how it might apply to a situation. In that case I’d written what I thought was a splendid piece of work. I’d considered the problem, looked at the law, thought about similar examples and recommended a proposed course of action for the customer.
The problem was that I’d put that recommended proposed course of action at the end of my splendid piece of writing. The partner’s comment was “I’m not reading six pages of how smart you are to find the answer, and neither will the client. Write it again with the answer at the top of the first page.” Lesson number one – the customer wants to know what you recommend they do, rather than get a lesson in the law. So advice is always at the start of a letter or email to a client – they expect you to be smart, so you don’t need to show off.
To finish this first note here’s a phrase we found in a document a few months ago:
IN WITNESS WHEREOF the parties hereto have hereunto and to a duplicate hereof set the hands of the respective authorized officials on the day and year first hereinbefore written.
How else could they possibly have said that?