The Law Does Not Require Legalese

I'd imagine that much of what we call legal jargon remains in use because it is accepted precedent, which courts tend to look favorably on. In other words, if there are many legal cases where "foo" is used to mean "bar", then lawyers will continue to use "foo" to mean "bar" even if it seems weird to the rest of us.

By the same token, if you were to write a contract in non-legalese, it would be more open to interpretation simply because the language hasn't been as thoroughly tested in the courts. Sure, if you're clever and write clearly then that might not be much of a problem, but are you really smart enough to write a contract that doesn't contain any unintentional loopholes that the other party's lawyers will pounce on if given the chance? A misplaced comma can spell disaster. That's one thing lawyers tend to be trained to do: using language that courts understand and agree on the meaning of.

To compare it to programming, I think of legalese as crufty code that simply remains in use because it has always remained in use, and ugly as it may be, we all know what it does. Woe is the young upstart developer who tries to rip it all out and replace it with something modern, much to the consternation of the greybeards who had a mutual understanding of how things have always worked previously.

A distinction should be made between legal jargon (witnesseth, to wit) and legalese, which is often relatively plain English that I find is intended to obscure the point in a way that favors the drafter. Doing things like referencing other parts of the contract to avoid clearly stating something the other side might take issue with.

Another aspect of legalese is to make reading difficult so that people give up and sign to make it go away. It doesn't stymie other lawyers and, when there's two in the room, they often state things clearly because they respect each other. They just don't respect the rubes.

Finally, a lot of it is found in contracts with a large power differential. I was just perusing the Wal-Mart online terms of service and they're basically disclaiming all responsibility for the company and making it hard to sue them. But most people want their item so they will accept the terms. Personally, I'm thinking twice about buying online now. In stores, the law applies.

Legalese is the equivalent of scientific Latin (heck it's often literally Latin).

The point is that if you make a distinct dialect then you can build precedent.

If you write in casual English you get situations where two people disagree on the meaning of a contract they both signed and the writer can't say well I used the phrase "hullabaloo" because the court decided that previously it means "ruckus" but not necessarily "drunk".

Dorothy Sayers had a couple of quips about the law in Peter Whimsey. Saying "oh, absolutely" in a conversation with a lawyer about a will having consequence, and the exact legal meaning of words like "wholly" in the context of food and drink made wholly from pears. She'd worked in advertising and may well have come across the "slug in the bottle" case, or something similar. And of course wills are often at the heart of detective fiction.

The point about contracts and the meaning of words at the time as distinct from in the present lawsuit is one of those "yes.. but how do you KNOW" moments. It feels like a statement of intent which goes to he-said/she-said except perhaps there is some context outside of the contract docs which sets what was intended, but that runs counter to the overall impression "its what the contract said, and not extraneous words"

I feel like most of the legalese comes in when the lawyer knows the case law between the cracks of the law as it's written. "So you can say X that way, but there was a case in M vs. G in 1989 that held that it could be interpreted as X' which is not what you want. To close that loophole, we usually add this clause..." Etc

Legalese is a way for the lawyers and those who can afford them to wrap up the other party in a piece of paper and make him/her sign off to things that normally wouldn't.

A side-effect is chocking up a lot of entrepreneurship/inventions/partnerships/etc in favor of protecting the said parties.

I'm sure contracts can be written in plain English instead of standard legal terminology. It'll work exactly analogously to programming a computer in plain English instead of in standard programming terminology.

An ambiguous contract is very like an ambiguous program. Nice when it goes your way, expensive to rely on.

Warren Buffett does deals with a handshake and one-page contracts on multi-billion dollar companies. Because he makes everything simple to close a deal.

Normally, companies spend a year to close. They quibble over tiny little things of no consequence - like a variance of .7% from one month's revenue in last March's revenue to April's revenue. Weeks of accountant's time, sales managers' time, all the owner's time.

I've screwed up deals because of lengthy contracts for small fry shit. That nobody in their right mind would accept.

I understand contracts more than most. I don't buy and sell nuclear power plants with that level of detail. My businesses are small - standard boilerplate, I know what all the clauses mean. It's not that difficult to understand basic business legal documents. Could one word or comma make a difference if I do it? Sure. As attorneys are always glad to point out. But that might be the case in 1 out of 100,000 contracts. I don't want to get a car like the President of the United States limo that costs $15 million - or whatever the fuck it costs - to keep him safe. I'm ok with a used 3 year old Toyota Camry that costs me $15,000. But am I as safe as the $15 Presidential limo? Do I give a fuck if I'm not as safe? That's a rhetorical question.

Sir Ernest Gowers, who did a mid-century revision of Fowler's Modern English Usage, wrote a book on his own, The Complete Plain Words, and remarked on ways that what in law appears to be nit-picking is necessary clarification. Gowers was a judge.

Legalese came to be because lawyers were paid by the word.

They're now paid for their time, but I would not discount the continued strength of this incentive. Longer contracts and complex legalese still correlates with more billable hours.

Same goes for many guild protected professions. Does the medical profession need all the Latin based terminology?