English has gone through many changes over the centuries. For example, expressions of politeness such as “I beg of you” or “If it please you” are no longer used. Today we simply say “please”. Modern language constantly evolves. The legal language, however, has not kept pace. Lawyers continue to see archaic phrases and Latin terminology. For example, although the expression “May it please you” is redundant in everyday speech, lawyers use it every day when announcing their appearance in court.
Because the use legalese has been criticised for making the law mysterious and unintelligible, use of simple and ordinary language, or Plain English, is encouraged. This means that lawyers should speak and write in a way that makes it easier for people to understand. The following examples demonstrate how legal jargon and Latin expressions can be replaced with plain English words:
- ‘good faith’ instead of ‘bona fide’;
- ‘from the beginning’ instead of ‘ab initio’;
- ‘prevented’ instead of ‘estopped’;
- ‘immediately’ instead of ‘forthwith’;
- ‘if’ instead of ‘in the event that’;
- ‘no effect’ instead of ‘null, void and no effect’;
- ‘until’ instead of ‘until such time’;
- ‘to’ instead of ‘for the purpose of’; and
- ‘enough’ instead of ‘sufficient number’.
Expressions such as ‘aforesaid’, ‘hereby’, ‘the said’ and ‘abovementioned’ should not be used at all. However, caution must be taken when considering replacing words or phrases which have previously been interpreted in case law, or which have a specific definition in legislation. Replacing a word may change its meaning and this can be dangerous. There are also some legal phrases which are considered terms of art, and which some will argue should never change. For example, ‘forum shopping’, ‘piercing the corporate veil’ and ‘cause of action’, refer to a legal rule, practice or concept. They lie outside their linguistic meaning and are used frequently by lawyers and the judiciary.
There are many benefits of using Plain English. Ethical issues arise from using language that is unintelligible to clients. Clients who do not understand the lawyer’s advice are more likely to say “my lawyer never told me that” or “I never knew that”. In fact, the client may have been properly advised, but did not understand what was being communicated. To them, therefore, the lawyer failed in their duty. A common complaint received by law societies is that the lawyer failed to communicate adequately with their clients. Using Plain English reduces such ethical dilemmas and complaints.
How I can help
Having practiced as a solicitor prior to becoming a barrister I understand the challenges that solicitors face. Busy practitioners are under pressure to meet client and firm expectations. Managing a high number of complex files can be overwhelming.
I can assist you by advising you and your client on their prospects of success, the evidence you will need, by drafting or settling your material, and by appearing in court with you and your client. If you need assistance with any of these matters please contact me on 0466 547 787 or email@example.com.
This blog is a short summary of my paper “Plain English for Lawyers” available on the “Speaker and Sessional Academic” page.