The Language of Lawyers and the Language of Plumbers


The Language of Lawyers and the Language of Plumbers

Edward Finegan

The terms “legal language” and “the language of the law” have served as titles for books by Peter Tiersma and David Mellinkoff, respectively. In scholarly arenas they are the terms favored over “legalese,” a term with a disparaging connotation that is more familiar to people outside communities of legal scholarship. Other referential terms serve as book titles for aspects of the language of the law, such as The Language of Judges (Solan 1993), intended for a scholarly audience, and Lawtalk (Clapp et al. 2011), illustrating a more popular discussion of legal expressions. In addition, titles and subtitles of monographs refer variously to “the language of criminal justice,” “the language of statutes,” “the language of bribery,” “the language of perjury cases,” while scores of books discuss “legal style” and “legal usage.” Considerable published writing opts for the broad characterization enabled by the simple conjunction of “language and law.” Inside handbooks and journals, one finds analyses of “the grammar and structure of legal texts,” “discourses in the language of the law,” “the rhetoric of constitutional law,” and so on. When it comes to vocabulary, Black’s Law Dictionary (Garner 2009), the legal dictionary favored in the American law community, runs to more than 1,900 pages, a magnitude that suggests heavy-duty specialization of legal vocabulary. Recently published is Heikki Mattila’s (2013) Comparative Legal Linguistics, a substantial book that highlights an increasingly broad analytical focus on the language of the law across several languages.

But what exactly is the language of the law and what are its characteristics? In “Some Myths About Legal Language” Peter Tiersma (2006) undercuts several oft-repeated claims about its characteristics—that it is precise; that it uses archaic vocabulary; that it relies heavily on Latin and French terms; that it tends toward wordiness, redundancy, pomposity, and dullness. Beyond those stock motifs, he tackles the knotty myth that the very concept of legal language is itself a myth. In his view, “it would be a gross mischaracterization to suggest that lawyers have a language of their own. But it would also be inaccurate to say that legal language is nothing more than formal written language with some additional technical vocabulary” (p. 48). He asks, “Is there no essential distinction between the language of lawyers and that of plumbers?” (p. 46), and in the end he concludes that, “Whatever the label, it is somewhere between a separate language and ordinary English, and it is much closer to ordinary English than many people seem to think” (p. 48).

He is right, of course. Whatever falls within the scope of the terms “legal language” and “the language of the law” does not constitute a separate language, certainly not in the sense that English is distinct from French or Japanese. Neither is it merely “formal written language” peppered with specialist or technical vocabulary. Tiersma is doubtless correct as well in saying that many people seem to think the language of the law more different from ordinary English than it is. Still, it is worthwhile to unpack some of the elements entailed in his conclusion that “it is much closer to ordinary English than many people seem to think.”

Written texts have been the chief focus of analysis and criticism in discussions of legal language among those within and without the perimeter of legal professionals. Law school classes focus largely on published appellate decisions and, to a lesser degree, the texts of statutory law. Law students are required to take courses in legal writing, and numerous textbooks address legal writing in its many genres—office memos, motions, trial briefs, letters to clients, and more. Men and women outside the legal profession also confront the language of the law chiefly in writing, particularly in quotidian forms of contract—insurance policies, rental agreements, documents for automobile or home loans, credit card applications, skiing or snowboarding waiver release forms, and so on. While the Plain English movement has to a limited degree reduced the linguistic opaqueness of some forms of contract, ordinary readers frequently sign contracts with little more than a glance at them, partly because they anticipate that reading them will shed little or no light on the obligations incurred or the privileges forgone and partly because what they are chiefly interested in is the end product—rental car, credit card, access to a chairlift. To that extent, then, it is, as Tiersma says, impossible to regard such contract language—with its exceedingly long sentences and cumbersome syntax—as nothing more than formal language, akin, say, to a letter offering employment or a letter of resignation such as a layperson might have occasion to read or write.

There are still other arenas of legal language—spoken genres in particular—where laypersons are vulnerable to the exigencies and idiosyncrasies of the law. Gregory Matoesian (1993) has documented the not surprising power imbalance inherent in courtroom cross-examination. Taken utterance by utterance, questions asked by counsel and replies by witnesses may sometimes appear like ordinary English, as in examples 1 and 2 below:

1. Q: D’you know what- (.) road you turned right off to?

A: No.

2. Q: Did you have any marijuana?

A: No.

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