By : Mr. Cornelius J. Stumme, Esq., Attorney-at-Law; Senior Partner, Stumme, Barking, Speaker & Husstel, a Law Firm Specializing in Appellate Advocacy & Trial Practice on behalf of the Energy Industry; Winner, American Bar Association’s 2001 Linguistic Precision Award (LPA); Published Speechwriter; Author, Write Thee Not for Understanding (Doubleday Publishers : New York 2005); Charter Member, American Lawyers for Professionalism Through Inaccessibility and Confounding Language.
Too many lawyers today disparage legalese. In law school, young attorneys learn to avoid “old-sounding” legal language because it sounds “confusing” and it is “hard to read.” Instead, their writing teachers instruct them to write staccato, informative sentences that read like newspaper headlines. Put briefly, lawyers today learn to write clearly. They want their readers to understand what they say the first time they read it.
This is disgraceful. Clarity in writing and speech contravenes the traditions of our profession. For centuries, lawyers gained a reputation for bewildering language that no one could truly understand except other lawyers and judges. And that was precisely the point: By learning legal language, lawyers separated themselves from the masses. Lawyers held an exalted station in society because they knew something no one else could learn without specialized training. Because only lawyers knew the language, they could rightfully advertise a “special skill” that others needed. But now, lawyers learn to speak the same way everyone else does. They learn to write for understanding, not obfuscation. This besmirches lawyers’ status. We should be different from laymen because we are smarter. And our language defines us. An attack on our language represents an attack on our very spirit.
Despite the trend favoring “clear language” in law practice, I continue to speak legalese. Moreover, I encourage all my colleagues to revitalize their respect for our linguistic traditions. I teach courses reminding lawyers that legalese makes us special. I encourage them to take pride in legalese. In short, legalese may be a dying art, but I am doing all I can to revive it every day. If I have anything to say about it, every lawyer will soon gladly use these words: “It being mutually agreed herewith, pursuant to notice and subject to all applicable legal limitations, qualifications, definitions and distinctions appurtenant thereon, that this certain Tract, located in and for the County of New York, by, through, by the grace of and under the legal auspices of the State of New York (an independent sovereignty constituted on the Continent of North America, having lawfully descended from the Crown of England, by the Grace of Majesty) commonly and colloquially known as 43 Bleecker Street, notwithstanding any vulgarities varying the same (hereinafter known as “The Plot”), shall henceforth, forever and always be subject to the Management, Control, Maintenance and skillful care of those Artisans, resident in and for aforesaid County and State of New York, known by Virtue of, and pursuant to the New York General Corporations Law, as Rosenberg Realty, Inc., except to such extent as the same would violate any Law, Ordinance, Judicial Decree, common law holding, cease and desist order, injunction—whether equitable or constructive, the constitutionality whereof notwithstanding, reliance whereon is hereby disclaimed for all time, indemnity wherefor is hereby demanded, including costs—or police quarantine, unless the Chief Operating Officer of aforesaid Rosenberg Realty, Inc. be not named Richard Rosenberg, in which case Plot shall never be subject the Management, Control, Maintenance and skillful care of such Artisans as mentioned herein; provided in all events it is not Good Friday.”
These words define us as lawyers. People pay us to write these words because they cannot. Anyone can say: “Rosenberg Realty will now manage 43 Bleecker Street.” But who can write it legally? Only we can. Did we go to law school to write and speak like everyone else? Certainly not. We went to law school—and we charge $575 an hour for it—because we know special words that other people do not know. And they need us to read, write and speak those special words in order to save their property.
We should be proud of our language. We should not be ashamed. Who cares what some intellectual thinks about “clarity in writing?” The law is not about clarity; the law is about special words. The law is not about equal access; the law is a brotherhood. We refuse to surrender our language to some left-wing crusade for accessibility and comprehensibility. After all, who would need a lawyer if they did not need to know what “notwithstanding aforesaid” means? Who would need a lawyer if they did not receive a letter threatening “equitable, as opposed to constructive, condemnation pursuant to General Statute § 346-1(a)(4) (West 2009)?” We have families to feed. And we can only feed them when legal language remains inaccessible.
Legalese not only provides us the means to support ourselves. It is also our lineage. In centuries past, lawyers enjoyed a high social reputation. Laymen respected lawyers because they spoke a mystical language they could scarcely understand. They identified lawyers’ language with learning, study and education. In the layman’s mind, legalese represented an academic achievement that demanded respect. Laymen might have ridiculed us for our language, but they never said we were not smart because we spoke it. In centuries past, we were not afraid to say “pursuant,” “notwithstanding,” “beyond cavil,” “thereunto,” “ultra vires non potest,” “waiver whereof” or “instant disclaimer excepted.” Our words dazzled laymen, leaving them both strangely impressed and utterly confused. They paid us well to dazzle others with our language. They did not expect us to speak clearly. No, they expected magic spells, not common words. Historically speaking, our profession gained prestige from its inaccessible language. When we sacrifice it, we sacrifice the very thing that makes us better than everybody else.
I refuse to give up legalese because it is better than English. I believe in legalese. I do not need to be clear because I do not need to be. In fact, I would be unprofessional if a layman could understand everything I say. When I appear in court, my clients expect me to say things that they cannot say. I do not say: “Your Honor, this is a Motion to Dismiss the other side’s lawsuit.” Anyone could say that. So I say: “Gracious and humble arbiter, appointed to this tribunal by those certain Executive authorities constituted rightfully under those founding documents central to our government, I appear herein to present my client’s contention that all pleadings in this matter made against his interest, even if believed true, exception whereto is hereby vigorously made, state no cause, either in law or fact, in ethics or law, or in common decency or decorum. This being so, I humbly move this Honorable Court, pursuant to law, the Rules of Civil Procedure, the Rules of the Supreme Court, any book, paper or pamphlet, and any or all authorities relevant to the disposition hereof, to fully and forevermore dismiss all claim against this, my client in interest.” My client expects nothing less. Why would he pay me $575 per hour to say something that is self-evident? No, he wants language that sounds perplexing. He wants language that only a professional can understand. That is what I deliver. I do not communicate. I obfuscate and bewilder. And I win with my language.
I believe in legalese so much that I use it in everyday life. I am a first and foremost a lawyer. I am a human being second. To that extent, I am proud to use a lawyer’s language to express even the most rudimentary information and to ask the most basic questions. If I did not, I would lose my identity as a lawyer. I worked too hard for that to happen. In that light, I do not use banal English; I use legalese. When ordering a sandwich at a fast food restaurant, I do not say: “Gimme a Big Mac® with cheese and onions, plus fries and a small drink.” Rather, I say: “I, Mr. Cornelius J. Stumme, Esq. (hereinafter known as “Buyer”), doth hereby present, tender and extend this Offer to Purchase (the “Offer”) to McDonald’s Restaurants, Inc. (an Illinois Corporation)(hereinafter known as “Seller”), acting by and through its duly-authorized agents, assigns, employees, attorneys and contractors, be they authorized by law or custom, or clothed therewith by fact: (1) One (1) Big Mac® sandwich, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; (2) One (1) twelve (12) ounce package of ‘French Fried’ curly potatoes, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; and (3) One (1) sixteen (16) ounce cup wherein may be poured, at Buyer’s sole and unreviewable discretion, any “Soft Drink” as may be offered by Seller upon the Premises whereupon this certain Sale Contract be concluded, pursuant to law and notwithstanding any contrary considerations, including any judicial determination in Seller’s favor. Acceptance of aforesaid Offer be made expressly conditional on full and final acquiescence to Buyer’s precise terms. Inclusion of varied, different or additional terms by Seller—for any reason and under any circumstances, whether innocent, negligent, intentional, reckless or simply stupid—shall immediately revoke Offer in toto, without recourse to legal remedy whatsoever. But Seller’s error, negligence or breach shall in no wise revoke Buyer’s right to pursue all legal remedies against Seller, whether in tort or contract, or under any applicable statute, State or Federal, including, but not limited to: compensatory damages; exemplary damages; loss of profits damages; pain and suffering damages; treble damages; or punitive damages without limitation whatsoever, the United States Constitution and common decency, humanity, good faith, dignity or shame notwithstanding.”
I like the way I speak. It makes me different. I do not speak like a commoner. I speak in the language of my legal ancestors. I owe it to myself and to my clients. For me, law is a way of life. It is not just a job. It provides an alternate way to express thoughts and to control reality. I resist all efforts to make me speak like my clients. If lawyers start speaking like everyone else, they cease to be lawyers. As lawyers, we must defend our heritage. That means defending—and proudly using—our language. No more will we say: “Honey, please pass me the salt.” From now on, we will only say: “I, Cornelis J. Stumme, Esq. (hereinafter known in this context as “Martial Promisor,” or “Husband”), being fully and validly licensed as a practicing Member of the Bar of the State of New York, and having laid forth legally-sufficient evidence of that certain good Character & Fitness necessary to practice law before the Courts of said State, the truth of the matter notwithstanding, doth hereby present this Request to Marital Promisee (also known as “Wife”), who, having assumed contractual obligations to render domestic, conjugal and household services to Marital Promisor for good consideration, including the provision of certain tableside services (see Stumme v. Stumme, 546 D.S.C. 421, 431 (2008)(“tableside services” include the passing of salt from Marital Promisee to Marital Promisor under any circumstances, on demand or at a definite time) to pass one (1) six (6) ounce salt shaker to Marital Promisor immediately, and without delay, subject to all sanctions for lateness, disobedience or nonperformance as provided in the Master Marital Contract (MMC), Section 56 (see, e.g., Flogging), appeal wherefrom is hereby disallowed.”
If people do not like our language, to hell with them. Our language pays our bills and makes us different. No matter what the public or the law professors say, we will not abandon legalese. We do not want to communicate clearly. We want to keep our traditions alive. If people want to understand us, they can learn our language. We refuse to speak English any longer. From now on, we will speak only legalese. And we will speak it proudly—pursuant to notice, subject to law and notwithstanding any contention, request or demand to the contrary, exception to which is hereby taken, all rights having been reserved; but under no circumstances shall such statement be construed as a waiver.
No comments:
Post a Comment