Lesson 2: Why is legal English so difficult?

My first answer to the question is that English is a difficult language anyway, and legal English occupies a corner all of its own. We noted in the previous lesson that lawyers use English very differently when writing a legal document compared to how they would speak to their colleagues or write an email to their favourite aunt. But what makes legal English so difficult? It’s because it is not like everyday English.

Lawyers use a specialist language

When lawyers write a will, a contract or a commercial agreement they want it to be free from uncertainty and to ensure that it achieves its purpose without any doubt. The document does not just communicate, it also seeks to control the behaviour of the parties. Many words that lawyers use (in any language) have a precise meaning that is understood by lawyers either because it has been used in that way for decades, or it has been given a meaning by statute or case law. These are what you might call jargon, and every profession has them. Jargon means special words or expressions used by a profession or group that are difficult for others outside that group to understand. So you, as a learner of legal English, must learn the vocabulary that lawyers, and only lawyers, use. In your study of general English, you won’t have been taught the meaning of estoppel, or bailment, or lien, or injunction, or case law, and these must be learned and understood if you are to practice law in English as a second language.

Lawyers use common words differently

And then there are those words that lawyers use differently from everyone else. Words like parcel, interest and prefer are in everyday use and are widely understood, but lawyers use them in very different ways.

• A parcel is an item that is wrapped in paper or card ready for posting. To a lawyer, a parcel is a defined piece of land.

• I have an interest in poetry. To a lawyer, an interest is a title to or rights over land or property.

• I prefer TV to cinema. To a lawyer, prefer means to start a criminal case (to prefer charges against someone).

I have over 80 of these words which I have included in this course.

Legal English is difficult because you have to learn how to use in a different way words you already know.

Lawyers love to use Latin

Actually, we all use Latin words without knowing it. At the end of a list you may find the word etc. For example,

They will ask you for your personal details - age, nationality, gender etc.

When we say this word we say it in full as et cetera and it means for us, just as it did to Julius Caesar, “and other similar things”. We use “and vice versa” when we mean “and the other way around”, and “the status quo” to mean “the previous state of affairs”. So we are speaking Latin and we don’t even know it. These words have just passed into general English.

On the other hand, lawyers use Latin sometimes because it is part of their jargon, but mostly because they have got into the habit of using it when it is unnecessary. A criminal lawyer will use the Latin words mens rea every day in court, because lawyers and judges know that mens rea means the way the defendant was thinking when a criminal act was done. In a civil trial involving negligence, you may hear a lawyer say res ipsa loquitur - the thing speaks for itself. Judges and lawyers know instantly what that means: that the facts are alone sufficient to show negligence and it is for the defendant to prove it was not. If an x-ray reveals that some scissors were left inside the patient’s chest, negligence is proven unless the doctor can offer an alternative explanation.

There are other times when Latin does not have a special meaning and it is used because it has become a habit to do so.

Some examples of the use of Latin when it is just a bad habit.

Using ab initio instead of from the beginning.

Using inter alia instead of among other things.

Using ex gratia instead of voluntary.

Legal English is difficult because it includes words taken from another language.

Lawyers use complicated language

Lawyers learned their language use from other, usually older, lawyers who also learned from other, usually older lawyers, and so bad habits have been passed down through the generations. Lawyers use precedents which means that if a badly-worded phrase is included in the template, its bad use is continued. Let’s take another look at the draft deed. It is clear to me that the draft was based on a template, and was adapted to cater for a very modern scenario: how do we limit the number of cars that are used by home owners? This 21st century problem is addressed using 18th century language.

NOW THIS DEED WITNESSETH as follows:

It is just as clear and accurate to say, This is the purpose of the deed. Why use capital letters? Why use witnesseth instead of witnesses?

IN WITNESS whereof with the intent that these presents should be executed as a Deed the parties hereto have duly executed the same the day and year first before written

It’s just as clear and accurate to say, The parties have agreed to its terms and entered into this deed on this day.

The Council will … effect a cancellation of any entry made in the Register.

In other words, the Council will cancel the entry.

This deed shall only be capable of being varied by a memorandum …

This deed may be varied only by a memorandum …

Legal English is difficult to understand because lawyers choose to write in a complicated way.

Learn legal English to use it well

This course aims to teach the best parts of legal English (lawyer’s specialist vocabulary and word usage) and how to avoid the worst parts (foreign words and phrases, unnecessarily complicated language).