Legalese. If you’ve ever had the misfortune of reading a contract, a complaint, or one of those licensing agreements wherein you agreed to give Google your first-born child and arbitrate all claims in Outer Mongolia, you understand exactly what I mean. The unending string of verbiage that occurs when you let loose a pack of frenzied attorneys upon a word processing program. And at a certain point, you’ve probably asked yourself whether or not it’s all necessary. Can’t they, you know, just write in American? Bigly? After all, if we can run the government in 140 characters or less, why can’t attorneys write documents that people can understand?
And since an attorney is answering the question, the answer is ... eh, it’s complicated. Boiled down, it relates to the following factors:
1. Jargon. Jargon gets a bad rap, and some of that bad rap is well-deserved. Jargon is a classic barrier to entry; it keeps some people in the know, while excluding others. After all, that’s why you used Pig Latin around Brad. But while lawyers can, and do, go overboard with jargon, certain terms allow for a precision that would otherwise be lacking. You wouldn’t want your doctor telling the nurse, “Hey, the guy has a, you know, heart thingy. He probably needs a wee bit, but not too much, of that liquid-y thing. Probably want to watch out for stuff, like that weird thing that happens to the organ in his whatchmacallit.”
Same with attorneys. A Motion to Dismiss is a different than a Motion for Summary Judgment. A statute of limitations is different than a statute of repose. Sometimes, a a casename is used to refer to an entire concept- McDonnell Douglas, for example, isn’t an airplane manufacturer; it’s a burden shifting framework for certain types of cases. While this jargon might exclude people, it also makes it much easier to communicate concepts precisely and quickly.
2. Good artists borrow, great artists steal. Most of us were taught not to plagiarize. But a practicing attorney plagiarizes ... all ... the ... time. The number of documents created from scratch by an attorney will be almost zero; instead, they will be plagiarizing themselves or other attorneys. What does this mean? Well, let’s say that 200 years ago there was a reason for attorneys to put some phrase in a document ... something like “COMES NOW” or some extraneous “WHEREFORES.” That document will be passed down, modified, and re-used over time, but those phrases will never be dropped. EVER.
Every new attorney will come to that document and think, “Hey, I’m not sure about who is COMING NOW, but someone is, so I should probably leave it there.” And the cycle will continue, because attorneys are naturally risk-averse and craven creatures. So many documents will contain old, unnecessary, archaic surplusage that is there because, at some point, long ago, that is the way things were done, and no one since then has bothered to change it.
3. Complexity. Words are imprecise. This means that any time you are writing anything in the law (whether it’s drafting a statute, drawing up a contract, or motion practice in court), you have the inevitable tradeoff between complexity to further clarify, or simplification which necessarily introduces ambiguity. This was expressed in a very nice, old-timey way by Justice John Marshall, who stated, “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.” This is the unremarkable proposition that you can either enumerate all possible instances (the prolixity of a legal code, or a contract that specifies all contingencies) or you can have litigation that delineates ambiguities (you have due process, and the amount of process that you are due ... well, good luck with that!).
4. The accretion of the law. Lawyers do, on occasion, pay attention to what the Courts say (especially when the Court is like, “You, attorney, stop doing lines of coke on the podium.”). So as Courts decides decide cases, these cases become incorporated into later documents. Let’s say some court decides that an arbitration provision is only enforceable if it’s written in BOLD, ALL-CAPS, at least 14 POINT FONT, and has its own heading and consists of at least three sentences. Guess what? All arbitration provisions are going to look like that from now on ... something you can think about when you are arbitrating in the U.S. Virgin Islands.
4. Bang for the Buck. This may be the most difficult thing to understand. But the process of legal writing is time-consuming, and you are paying for it. So let’s say you have to pay for the attorney to find a document to steal ... um ... use as inspiration. Then to edit it. Then to expand it with additional provisions that are specific to your case. You now have a serviceable, if overly complex, document. What is the cost/benefit for paying the attorney to do the complicated, complex, and time-consuming work of going back into that document and streamlining it so that it “reads nice?”
So, to answer the question posed by the title of this post- lawyers have to write like that some of the time, you’re not paying them to write it any better, and yes, they’re messing with you. Because that’s what lawyers do.