November 12, 2019

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Why Lawyers Are Redundant: History Is Destiny

June 12, 2018

 

History — and I’m going way, way back — informs why lawyers write in redundancies.

Blame It on the French

When William the Conqueror imposed Norman law on England in the 11th century, the Anglo-Saxon population was already speaking its own language, and it wasn’t French. To make sure everyone understood what a law or contract meant, writers used both the Old English word and French. Or the Old English word and Latin. Or the French word and Latin. Trouble is we’re still using those redundancies:

  • Acknowledge and confess

  • Act and deed

  • Breaking and entering

  • Final and conclusive

  • Free and clear

  • Goods and chattels

  • Peace and quiet

  • Will and testament

Now lawyers use every term they can think of because some court somewhere once said that the language in the contract or statute didn’t cover the dispute. Sometimes that’s a good reason, but often it is not. Rather than a considered approach, most lawyers start with a template that has been reworked over decades (centuries?) without ever removing archaic language.

Plus Ça Change, Plus C’est la Même Chose

Two more reasons account for our lengthy documents.

Scriveners were paid by the word, so they were motivated to insert extra words, such as: said, aforesaid, herein, hereof, hereinafter, hereunder, heretofore, aforesaid, wherein, whereon, whereas, therein, thereon and therefore. Do you hear echoes of hourly billing?

A second reason, which exists to this day, is that clients felt shortchanged if their document was too short. Use your client management skills to explain the good lawyering that went into the preparation of an exceptionally terse document.

The KISS Principle

Various organizations tried to promote plain language as early as 1362. We all know how well that has worked out.

The basic rule is to keep it simple.

  • Start with an outline or checklist. Then you’ll know what you’re trying to achieve before you open the template.

  • Be specific. Specificity is better than a laundry list of synonyms, which may not help your client in the crunch. Set verifiable performance definitions.

  • Use simple sentences. The clearest sentences are ordered subject/verb/direct object, even when one or more of those components is a long phrase or clause.

  • Choose the simplest word. Try to avoid words of more than three syllables unless you are using a technical term.

  • Avoid jargon. Not everyone may agree on what that abbreviation means later.

  • Don’t say the same thing more than once. Many law firm templates include repetitive paragraphs because someone combined multiple contracts and decided to include language from all of them, though the paragraphs say the same thing in different ways. This doesn’t make your contract better; it sets the stage for a court battle about which language controls.

Stop trying to sound like a historic barrister. Your opposing counsel and colleagues will not be impressed, and your clients may not understand what is going on. This doesn’t make you sound like a better lawyer, just a pretentious one.

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