Blogger Seth Godin posted something thoughtful this morning, which sums up my philosophy about legal writing — indeed my philosophy toward communication by lawyers in general:
There’s actually no legal requirement that an agreement not be in specific, clear, everyday English. To do otherwise disrespects the person you’re hoping to engage with. There’s no legal requirement that even the terms of service for a website can’t be clear and easy to understand. In fact, if the goal is to avoid confusion and the costs of the legal system when conflicts occur, the more clear, the better.
For centuries, lawyers have engaged in poor communication practices: “Whereas the party in the first part intends to grant unto the party in the second part all right, title, and interest in the fee simple estate describes hereunder as…” Why not, “Bob Smith gives his interest in his house to John Doe”? We lawyers use Latin as code, “res ipsa loquitur,” “duces tecum,” “pro se,” even “quicquid plantatur solo, solo cedit” (which, by the way, means that, if something like a house is attached to the ground, it is part of the land and ownership to the house transfers when you transfer ownership of the land). We are redundant: “aid and abet,” “null and void,” “cease and desist.” We begin our contracts with lots of “Whereas” and “Wherefore” and “Be it stated that…”
Why? I believe it is because we lawyers have always done it this way. Lawyers as a species are recyclers, making use of what worked in the past, whether because doing so is efficient or because we are too scared or unsure to make changes. So we continue to say “aid and abet,” “res ipsa loquitor,” and all sorts of other confusing things. For years, litigators in Idaho have begun their pleadings with “COMES NOW blah blah the Plaintiff, by and through Dewey Cheatum & Howe, his undersigned attorney of record, hereby moves the Court to yada yada yada” Why not, “The Plaintiff, by his undersigned attorney, moves the Court to write in simple, clear language?”
To be sure, a lawyer’s first job is to communicate accurately and precisely. We don’t write for fun – we write to make sure our client’s interests are protected. Sometimes, a latin phrase (like a favorite of mine, “per stirpes”) is useful shorthand for a difficult concept. But “aid and abet” is just silly. They both mean “help.” Can anyone give me a situation where you aided in the commission of a crime, but you did not abet the commission of the crime. Maybe the crime of “aiding and abetting a crime” should be changed to “helping out with a crime.”
So, if you are a lawyer, please rethink why you write the way you write. If you are a client or potential client, please set the expectation that, at a minimum, your lawyer explains terms of art (like “per stirpes”) to you and avoids the use of such phrases as “Be it stated that…” at all costs, whether in the drafting of contracts, wills, legal briefs, or just an email to you.