Re: Legal English? (take III)

Subject: Re: Legal English? (take III)
From: David Neeley <dbneeley -at- oddpost -dot- com>
To: Geoff Hart <ghart -at- videotron -dot- ca>, TECHWR-L <techwr-l -at- lists -dot- raycomm -dot- com>
Date: Thu, 12 Feb 2004 16:34:09 -0800 (PST)

Eric has made a rather common mistake in thinking that any particular language a lawyer may draft is a "legal definition." Actually, the only time one can say with any degree of safety that a particular bit of prose is a "legal definition" is when it has either been the subject of lawsuits that have become settled law within a given jurisdiction or when it is defined in a well-respected legal treatise that has in turn been followed by the courts.

When a lawyer is paid to research something and write an analysis of it that a client intends to rely upon, this is a "legal opinion." Because this opinion can place considerable liability on the shoulders of the lawyer, this is only done with care by any lawyer who wants to avoid bankruptcy. This is, however, not any sort of "holy writ" but only as it says--the lawyer's opinion regarding the particular question based upon some level of legal research.

The simple fact is that most lawyers are abysmal writers!

In fact, my law school and ten years of practice nearly wrecked my own writing. After many years away from the practice, I still must work very hard to write clearly.

A growing trend in contract law in many jurisdictions, in fact, is to mandate that contracts be written in everyday language accessible to the average individual. Clarity of language is always better than obscure terms. The reason you hear about the obscure terms is because those are the ones that wind up in very costly disputes in court! The clear ones, by contrast, are nearly always understood by both parties well enough that any suit must rely upon other grounds.

Some incredibly strained definitions in contract law are being played out in the SCO vs. IBM case, as detailed in considerable detail at You can spend many hours getting an understanding of how people can strain to misinterpret contracts.


"I also said that "the legal profession as a whole could benefit from a
large number of skilled editors", to which Eric replied: <<But what
would they allow you to edit. I doesn't matter what an editor says a
particular text means or that their rewrite is identical or clearer
than the passage being replaced. The opinion that matters is that of a
judge or jury. If you edit the text, it no longer has a legal
definition and is open to being rechallenged in court.>>"

Legal English? (take III): From: Geoff Hart

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