Simplifying legalese: Let language be a stepping stone, not a stumbling block

Legal Lingquibbles. Yep, that’s a term I have coined – writers have that privilege, started as far back as Chaucer, though I dare claim no parity.

Quibbles over language – like quibbling over language, hence `lingquibbles’, and since it pertains to matters `legal’, here you go …

Jargon has its uses, it would appear. Ask any professional, especially a lawyer or doctor. No doubt architects, engineers and accountants have their own jargon, but I confess I am woefully ignorant about those!

Since the law is my profession, let’s stick to the legalese – especially archaic, jargonistic, outdated legalese, understood by few others than the Black-Coated fraternity – as opposed to the White-Coated, though that is not to mean that the colour represents anything other than just that: colour.

It starts with the genesis: the Acts of Parliament itself, which sometimes are clothed in language open to several meanings and interpretations; and the ‘Deeds’: Documents, Agreements, Conveyances, Trust Deeds: the language used in the drafting whereof needeth, notwithstanding anything contended to the contrary, a qualified practitioner of law to understand not only the crux, but also the meaning thereof, notwithstanding anything contained in what is set out herein and/or hereunder and/or hereinafter.

Yes I know, I am exaggerating, but that’s only to drive a point home! How utterly cumbersome are our documents, using archaic language which we still jealously cling to! Never use one word when five will seem more impressive; never use just simple `witnesses’: `witnesseth’ hath added weight, as hath `hath’, rather than the pedestrian `has’; ‘sheweth’ sounds better than `shows’ and why ‘do’ or ‘does’ when you can have `doth’? The legalese then travels, from the documents into pleadings, the precursors to arguments in Court.

`Notwithstanding anything contained anywhere else’ … `inasmuch as the context permits’ … `heretofore’ `hereinbefore’ `herein’ `hereinunder’ `hereinbelow’ … `subject to any contract to the contrary’ … `notwithstanding anything to the contrary/’ …

The very start of the Petition sometimes evokes (unintended) hilarity! The Petition is always `humble’, and ends with humbly praying `in duty bound’ for this ‘act of kindness’.

The drafting is rarely, if ever, elegant and/or sparse and/or pithy and/or to the point. It is largely prolix, long-winded, full of obsolete, archaic, salutations and phrases.

Some of the more annoying ones, used almost by rote, as it were: `The Petitioner says and submits’ … this goes on at the start of every para, even though right at the beginning it is stated: ‘The Humble Petition of the Petitioner above named Most Respectfully Sheweth’. In the case of a suit, the Plaintiff generally merely `states’. So, is the `Petitioner’ more humble than the `Plaintiff’ because he /she `petitions’?

One also finds: the `At the very outset’ … `at the further outset’ … `at the outset’. How much further can the `outsets’ be stretched depends on one’s ingenuity – and insensitivity to bad language!

Yes, bad, cumbersome drafting practices, which almost all of us lawyers are guilty of! And yet, drafting could be made far more elegant, precise and concise and intelligible.

That would also reduce the load on the Court, the Judges, and above all, the poor Court Helpers who have to lug huge bundles of papers to court every day! Papers and pleadings for one single case can run into as many as four-five large bundles, making it both difficult and cumbersome to handle, for everyone, including the Judge/s hearing the matter.

Then the arguments in Court. In the High Courts and Supreme Court, the salutation is always `My lord / Milor’/Your lordship’ etc., and of course, `lord’ includes `lady’.

The opponent is always the ‘learned friend’. If he/she has the square flap – which I think needs to be done away with – he/she becomes a ‘learned senior friend’, though I never use that phrase. If I want to be particularly sarcastic, I say `very’ learned friend.

In arguments, we try to simplify the language of the pleadings and/or documents. However, sometimes, way too much time goes into `interpreting’ the nuances / meaning / context, even where the meaning and context should be really crystal clear, especially of the sections in the Acts! Punctuation has its own role to play, and a misplaced comma can cause havoc in a statute or pleading! And no, there’s no `proof reading’ done. Not all who ‘settle’ pleadings drafted by persons more junior bother with every comma, semicolon and full-stop. As for the Parliament, I sometimes wonder whether they even read what they pass, much less debate.

Formality in and of language is sometimes both desirable and necessary. However, language should be a stepping stone, not a stumbling block!

This is of importance, even and especially while writing judgements – something their lordships need to heed! That their Judgements are meant for the general public, the common man – as indeed one highly effective Judge had said, when criticized for his `overly simple’ orders and judgement - not meant for PhD scholars in literature! The more `flowery’ the language in a Judgement, the more vulnerable that makes the Judgement, susceptible to `interference’ from the Appeal Court or the Supreme Court, which then may debate the exact meaning of the Judgement, draining the litigant of money, time and patience in prolonged litigation, especially when the parties are not evenly matched. When one of the parties is the Government, or even an `Authority’ or `State under Article 12’, the plight of the litigant on the other side , who cannot match the resources or the might of the State, is often truly pitiable.

Some years ago, I had written about archaic and obsolete `Acts’ which were still littering – quite literally – our Statute Books. Well, same is the case when it comes to language, and here’s hoping that the language – of all matters legal: Acts of Parliament, Deeds and Document, Petitions and Pleadings, and the language used in Court and in Judgements - undergoes a process of simplification, which will make the reading easier, and the language itself more elegant, lucid, precise and – hopefully - final.