Lex gibberish
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I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).
So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?
Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.
Jury instructions are long, painful, meandering and - above all - repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.
Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.
It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.
I catch myself talking to clients in legalese sometimes - and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.
Briefs are the same - wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?
Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives - and our jobs - would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.
Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try - for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?
(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)
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Based on the number of incomprehensible jury verdicts we have seen in several notorious cases, I believe that most jurors don’t have a clue what they are supposed to do. It seems to be the exception, not the rule, when one, such as the OJ jury or the Robert Blake jury, actually follows the law and can explain why.
Some blame must surely attach, however, to such things as “peephole confessions” (”We interrogated him for 13 hours but only recorded these 20 minutes”), and suggestions from prosecutors that the case “is a puzzle where the pieces all fit” (”I can’t make a case according to the law so you just go ahead and guess - and I’ll spend most of my time badmouthing the defendant”.)
When it comes to jury trials, I routinely avoid “sounding like a lawyer” simply cause it defeats the purpose for my target audience….the jury. In fact, part of my standard MO in jury trials is to mock the state for throwing legalese at the jury rather than talking to them in “English”……
I think the OJ trial was a perfect example of what to do and what NOT to do in order to get your point across to the ones who hold your clients liberty in the balance.
You have to speak a certain way, dress a certain way, accessorize a certain way, use “buzz” words and “slang” in a certain way…it all has it’s proper place in a jury trial.
You can have the most scholarly, legally correct argument but it’s all for nothing if the jury has to figure out what you just said.
Not that the medical profession is any better. The term, “clinical”, for example, actually means nothing, i.e. a clinical trail is a trial, a clinical exam is an exam etc. But they love that word!
yeah…..I agree with you on that!LOL! I think they got it worse than we do tho….not only do they talk like they are talking to a mirror, but they can’t write legibly either.
Many groups working on this problem and getting results–gradually. There are the Plain Language Association International, the Plain Language Center, Clarity (an association of lawyers), and me too–http://plainlanguage.com