Duhaime's Law Dictionary


Legalese Definition:

Legal terms combined in long-winded sentences, or varied or with permutations, with the initial design of legal or drafting precision but which otherwise add unnecessary complexity or inadvertently resulting in confusion.

Related Terms: Flesch Reading Ease Test

English words combined with others in long-winded sentences, or varied or with permutations, ancient words and with the initial design of legal or drafting precision but which otherwise add unnecessary complexity and inadvertently resulting in confusion (which, in classic legalese, we'd call overparticularity).

Consider these classic legalese words of Judge Kaplan in Board of Health of North Adams v Mayor of North Adams:

"In resolving the question whether, and how, to count ballots not marked by voters in accordance with instructions, so that the intent of the voter is unclear, we have said that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the election, effect must be given to that intent and the vote counted in accordance therewith."

no legalese signUniversity of New Brunswick law professor A. La Forest takes full credit for this one but which, as a "curtesy", we will hyperlink the offending words:

"If the wife had a life estate and a reversion in fee following a contingent remainder, there was an estate by the curtesy in the reversion if the remainder did not take effect, because the life estate and reversion were united in her, but there was no curtesy in the reversion if the remainder took effect."

Or this 266-word sentence text from §17 of British Columbia's Law & Equity Act:

"Where an action is brought on a bond for payment of the money secured by a mortgage or performance of its covenants or where an action of ejectment is brought by a mortgagee or his or her heirs, personal representatives or assigns for the recovery of the possession of mortgaged land, and no suit is pending concerning the foreclosing or redeeming of the mortgaged land, if the person who has the right to redeem the mortgaged land appears and becomes a defendant in the action and at any time, pending the action, pays to the mortgagee or, in the case of the mortgagee's refusal, brings into court where the action is pending all the principal money and interest due on the mortgage, and all costs spent in any proceeding on the mortgage, the money for principal, interest and costs to be calculated by the court, the money so paid to the mortgagee or brought into court is in full satisfaction and discharge of the mortgage, and the court must and may discharge the mortgagor or defendant from the mortgage accordingly and must and may, by the rules of the court, compel the mortgagee, at the expense of the mortgagor, to assign, surrender or reconvey the mortgaged land and the estate and interest that the mortgagee has in it, and deliver up all deeds, evidences and writings in the mortgagee's custody relating to the title of the mortgaged land to the mortgagor who has paid or brought the money into the court, the mortgagor's heirs, personal representatives or to the person the mortgagor appoints for that purpose."

Or this from the English Justice Cave in R v Norfolk (1891), the law's version of Abbott and Costello's Who's on First?:

"When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless it is to be deemed to be that thing."

Another venue for outstanding legalese is the English language version of Quebec's Civil Code, a must-read for all legalese fans.

Some words are "just plain wrong" and should not be used. These include aforementioned, heretofore, thenceforth, therewith, and wilst.

Legalese can also occur by the use of a archaic jargon instead of a simple or "plain language" term.

Legalese Plain Language
commence start; begin
endeavour try
subsequent to after
and/or or
in case if
which that
whereas since (or) as
forthwith immediately
attains the age of become X years old

On the other side of the coin, these words of Justice Birkett, upon a speech given by him to the English Association in 1953 on the topic of The Magic of Words:

"You cannot spend long years in thew law without being conscious that the lawyer for many of his purposes - his wills and conveyances and the like - must resolutely eschew the words that have colour and content himself with the hereinbefores and aforesaids in order to achieve precision."1

The great American law reform crusader Fred Rodell once quipped:

"I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a 19th century sermon and a treatise on higher mathematics."

Vancouver lawyer Jean-Paul Boyd wrote in a 2013 publication on family law, referring to legalese:

"The problem with (legalese) is that while we can communicate with each other perfectly well, like Laplanders discussing reindeer no one else knows what we're talking about."

REFERENCES:

  • Board of Health of North Adams v Mayor of North Adams, 368 Mass. 554 (1975)
  • Dick, R., Legal Drafting, 2nd Ed. (Toronto: Carswell, 1985)
  • Duhaime, Lloyd, Legal Definition of Flesch Reading Ease Test
  • Fountain, Richard, The Wit of the Wig (London: Leslie Frewin Publisher, 1968), page 17 [NOTE 1]
  • Law and Equity Act, Revised Statutes of British Columbia 1996, Chapter 253

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