Using Legalese to Discourage Clients and Counterparties
Bad Staff Writer
The Artful Mastery of Legalese
Today, I'd like to shine a spotlight on an oft-maligned phenomenon in legal circles: the delightful language we call legalese. This intricate jargon, with its labyrinthine sentences and glorious complexity, serves a purpose far more profound than mere obfuscation. In fact, it is an invaluable tool in the hands of a savvy lawyer, effectively discouraging counterparties from suggesting too many changes in a contract. Allow me to present my case.
Legalese: The Guardian of Legal Integrity
Many simple folk see legalese as a barrier, an unnecessary added complication of the already complex legal system. But consider this: by making contracts dense and difficult to penetrate, we effectively deter the uninitiated from attempting to meddle in the sanctity of the legal document.
Faced with a document of incredible complexity and unfamiliar vocabulary, clients are shamed into silence. How can they question their counsel's wisdom without revealing their ignorance of the language? How can they follow the logic without your guidance?
A contract, after all, is not a casual arrangement. It is a binding commitment, a solemn vow. Shouldn't it, then, be couched in language that befits its gravity?
Legalese keeps clients from insisting on 'a simple change' that might weaken the document. It reduces unwanted and unwelcome edits, and increases their dependence on the drafter as a guide, interpreter, and interceding priest at the altar of the law.
Counterparties, even opposing counsel with education in the art of legal obfuscation, are daunted by the prospect of proposing so many changes, and tempted to focus on the 'important parts', rather than engaging in what seem like petty arguments about the bloated language, all of which can be defended, solemn-word-by-solemn-word, as necessary for precision in this important document.
And then there's the billable hours...
Craftsmanship: Turning Language into an Impenetrable Fortress
Now, to the heart of the matter: how can we employ legalese to the fullest extent? Like a military commander, we must marshal our troops and deploy them on the battlefield: precise but unusual words, dependent clauses, parenthetical modifiers, run-on sentences, and the most powerful force of all, Latin and Old French.
Precise but Unusual Words: The English language is a treasure trove of obscure words that can fog the clearest of minds. Why use "end" when you can use "termination"? Why use "agree" when "concur" sounds so much more formidable? The judicious use of arcane vocabulary can transform a simple document into a fortress of language.
Dependent Clauses: Ah, the dependent clause, the linchpin of complexity. A masterfully constructed sentence with several dependent clauses is like a Russian nesting doll of meaning, each layer revealing a new level of interpretation. The true beauty of the dependent clause is its ability to create a sense of endlessness, a feeling that one is forever peeling back layers of meaning, never quite reaching the core.
Parenthetical Modifiers: Parenthetical modifiers are the unsung heroes of legal obfuscation. They can be employed to clarify, but also to mystify, adding an extra layer of complexity that requires careful unpacking. They can take a simple statement and turn it into a labyrinthine puzzle, begging the question: what exactly is the "said party" to which the contract refers?
Run-on Sentences: The king of complexity is the run-on sentence, a well-crafted instance of which can run the length of a paragraph, or likely the length of two, properly formed, its many clauses and sub-clauses winding around each other like a Gordian knot, patience, concentration, and a keen eye for detail the last hope, to take a phrase from the telling of the tales of a cinematic universe, and to rehome it to this terrestrial sphere, to unravel, ensuring that only the most committed readers will attempt to parse its meaning, especially if, arguing from the unimpeachable position of an advocate of simplicity, the holder of the pen eschews the semicolon in favor of a form of punctuation from which it seems to have been constructed, from the bottom up, namely, the comma.
Latin and Old French: What discussion of legalese would be complete without acknowledging the ancient guardians of legal language: Latin and Old French phrases? These linguistic relics from bygone eras add an extra layer of impenetrability to our legal documents, a venerable barrier that repels casual intruders and maintains the sanctity of our contracts.
Latin, the language of the Roman Empire and the bedrock of many modern European languages, has long been the lingua franca of the legal profession. Phrases like "habeas corpus," "pro bono," and "quid pro quo" are familiar to most, but the true genius of Latin lies in its less common phrases. Consider "res ipsa loquitur" (the thing speaks for itself), "ex parte" (from one party), or "sui generis" (of its own kind). These phrases are not only precise, they are also a linguistic gauntlet, challenging the reader to prove their understanding.
Old French, on the other hand, may seem a curious choice for English legal documents. But consider this: after the Norman conquest of England in 1066, Old French became the language of the English court. It is from this period that we have inherited phrases like "estoppel" (to stop), "tort" (wrong), and "laches" (delay). These Old French terms, like their Latin counterparts, act as guardians of the law, their foreignness a deterrent to the uninitiated.
By employing these ancient tongues in our legal documents, we are not only paying homage to the history of our profession, we are also creating an additional layer of complexity, an extra hurdle for those who would seek to challenge our contracts. They stand as a testament to the gravity and solemnity of the law, a reminder that legal language is not for the faint of heart.
The Bottom Line: Embracing Complexity
So, my dear readers, I urge you to embrace the complexity of legalese. Do not see it as a barrier, but as a tool. Use it to protect the integrity of your contracts, to deter meddling counterparties, and to create documents that are as formidable as they are legally binding. Remember: in the world of law, language is power. And nothing wields power quite like a well-crafted piece of legalese.
In conclusion, while some may decry legalese as inaccessible and overly complicated, I would argue that its complexity is not a bug, but a feature. It serves a vital purpose, creating a linguistic moat around our legal agreements, ensuring that they are not easily challenged by the uneducated, the uninformed, or the impatient.