Mrs. A.
Ofoe
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Legal Writing&
Study Skills1
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What is legal English and legalese?
The English legal language of today includes many different legal
discourses such as the language of statutes or Acts of Parliament,
legal documents (contracts, deeds, wills), and also judicial discourse,
which is the language of court rulings collected in reports, the
language used by judges, counsels, court officials, witnesses and
other participants in a trial; and discourse of legal consultation
between lawyer and lawyer, lawyer and client. Each discourse differs
according to the situation in which it is used. Yet, there are some
common features which distinctly characterize the modern legal
English, in general.
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Legalese:
These features are grouped by the term legalese which is the
specialized language of the legal profession, or more
specifically, the style of English used by lawyers and other legal
professionals in the course of their work; it is applied in drafting
of legal documents, court pleadings/statements of case and
laws, in legal writing and in legal correspondence.
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Legal English is closely connected to the Latin and French legal
languages which have strongly influenced its development. In
Medieval England, the predominant spoken language in courts
was French, while legal documents were written in Latin and
French. One of the reasons for the use of these languages in
law, instead of English, might have been “the urge to have a
secret language and to preserve a professional monopoly” and
thus to set it apart from the rest of the society (Maley, 1994:12).
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Only by the end of the 15 th century statutes began to be printed
in English (Beveridge, 1998:124). However, it was not until the
17 th centuries that English became the official language of law
and gradually the domination of legal French and legal Latin
was over (Maley, 1994:12). The contacts with these two
languages have had a big impact on the formation of legal
English and its characteristic features.
The most prominent feature of legal English is legal terminology
which has developed through centuries of political, social and
legal changes.
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How Did the Language of Lawyers
( Legal English) Develop ?
Legal English is a melting pot of numerous social, political and
cultural origins.
Sources :
Influenced by Romans ( Latin)
By Anglo – Saxons ( Old – English)
French ( Norman Conquest), Middle English after Conquest
Christian missionaries ( Latin)
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The Development of Legal English:
Note: Legal English as it stands is the result of the history and
political-social process going on at the time.
It is a well known fact that legal English originated largely from
French and Latin languages, legal English is an outcome of a
number of invasions of Britain.
The invasion that had arguably the biggest influence on the
development of legal English as we know it happened in 1066 by
the French forces from Normandy led by William the Conqueror.
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Because of the Norman Conquest French became the official language
used in the courts of England. English language was spoken by the
majority of people in England; it was the language of the common
people. However, the court, as well as the government, legal officials,
religious dignitaries, and military representatives used French, which
was at that time considered to be the language of upper classes. This
fact can be used to explain the influence of French on the development
of the English legal language. The strong influence of French on
contemporary legal English can be seen in many key legal terms, such
as agreement, attorney, claim, contract, covenant, guardian, trespass,
pledge,
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a. Anglo-Norman, Old English, Middle English words :
Alien, chose in action, demurrer, estoppel, Esquire, fee simple &
fee tail, laches; metes and bounds, Oyez, quash, rol, voir dire,
Aforesaid and forthwith, herewords: herein, hereby, hereafter…, Let
(without let or hindrance), said and such (adjectives), Thence and
thenceforth, there-words: thereby, thereafter…, Wherewords:
whereas, whereby […]
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b. Latin borrowings :
Conspiracy, contempt, custody, homicide, immune, infancy, legal,
lucrative, necessary, prosecute, rational, remit, scrutiny, secular,
submit, subordinate, subscribe, summary, testify, testimony, Ab
initio, corpus delicti, ad damnum, ejusdem generis, Amicus curiae,
et al., Certiorari, ex contractu, Ex delicto, ejusdem generis, Amicus
curiae, et al., Certiorari, ex contractu, Ex delicto, passu, In re, quid
pro quo, inclusio unius, exclusio alterius, Sui juris, lex fori, vis major
[…]
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c. French terms : bar, assize, eyre, plea, suit, plaintiff, defendant,
judge, advocate, attorney, bill, petition, complaint, inquest, summons,
hue and cry, indictment, jury, juror, panel, felon, evidence, proof, bail,
ransom, mainpernor, judgment, verdict, sentence, felon, evidence,
proof, bail, ransom, mainpernor, judgment, verdict, sentence,
accuse, indict, arraign, depose, blame, arrest, seize, pledge,
warrant, assail, assign, judge, condemn, convict, award, amerce,
distrain, imprison, banish, acquit, pardon, felony, trespass, assault,
arson, larceny, fraud, libel, slander, perjury, adultery, Damage, debt,
deceit, fault, force, grief, malice, manner, marriage, etc
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obligation, debt, agreement, and many more.
Uneducated English people did not understand the process. As a
result of this, in 1362, the Statute of Pleading was implemented,
which ordered the English language to be the official language of
all court proceedings. The legislation required that English, rather
than French, should be the compulsory language of oral
communication in all royal and seigniorial courts in the land.
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Due to various challenges, including the reality that the study of
law was in French, it took a hundred years before the switch
was implemented and English became the official language of
English courts. That did not mean that the French and Latin
terminology disappeared from legal English, It became its
prominent component. To prevent confusion during the times of
transition, both terms were included; this combination of
synonyms or near synonyms has become an integral part of
legal English. Such word pairings include: cease and assist, null
and void, title and interest, peace and quiet, breaking and
entering.
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Middle English gave birth to many legal terms, which are still used today.
Such words include: notwithstanding, aforesaid, and many other terms that
include the words "where", "here", and "there", such as wherein, whereby,
whereof, whereupon, hereunder, thereby, and thereupon. These words can
still be seen in legal documents, while one would not encounter these in
commonly used language. In the next centuries, legal English was
changing its form rapidly. During this time, many new legal terms came to
existence, such as: affidavit, subpoena, and corporation. Scholars
continued using Latin, French, Italian, and Spanish as a backbone of legal
language. backbone of legal language. There was, however, a strong push
for improvement of English language.
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It is safe to say that the centuries of influence of other
languages on English has left a major mark on the
contemporary language.
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Essence of Developing Legal Writing Skills:
Lawyers, paralegals, legal professionals write a lot and thus it is important
to gain familiarity with legal writing as well as confidence in this area,
As a legal professional you will have to write:
Motions ( formal request for a desired ruling)
Briefs ( written argument submitted to the court, short synopsis of case/
case summary)
Draft contracts
court papers
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letters
Legal instruments
Internal working documents for a law firm
Legal memoranda ( document used in legal practice to identify
and advise on legal issues in a clients case it is a structured
letter with headings that clearly identify legal issues.
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Note that the legal documents mentioned, follow certain styles,
structures, conventions, coupled with legal reasoning skills.
It is a must that legal professionals convey meaning to their
audience, clearly and consistently.
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Legal language is most of the time is different from ordinary
English and that can make it difficult to understand.
A number of factors contribute towards the difficulty of legal
language such as :
1) Different writing conventions - Unique structures, insufficient use
of punctuation, use of foreign phrases, peculiar pronouns and
phrases are also employed.
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2) A large number of puzzling words and phrases are used, these
consist of four components:
Legal terms of art :
Legal terms of art are technical words and phrases that have
precise and fixed legal meanings and which cannot usually be
replaced by other words. Some of these will be familiar to the
layperson (e.g. patent, share, royalty). Others are generally only
known to lawyers (e.g. bailment, abatement).
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Legal Jargon:
Legal jargon comprises of words used by lawyers, which are difficult for
non-lawyers to understand. Jargon words range from near-slang to
almost technically precise words. e.g. corporate veil, floodgates principle.
Legal jargon also comprises of a number of outmoded words e.g. annul,
bequest. It also includes not so clear words such as emoluments (a
person’s earnings, including salaries, fees, wages, profits ). Note,
Jargon words should be replaced by plain language equivalents
wherever possible.
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3) Legal meaning may differ from the general meaning :
Word and its legal English meaning :
Consideration - means an act, forbearance, or promise by one
party to a contract that constitutes the price for which the promise
of the other party is bought. Consideration is essential to the
validity of any contract other than one made by deed.
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4) Word and its legal English meaning Word and its ordinary
English meaning : Consideration in ordinary English means; (1)
careful thought, (2) a fact taken into account when making a
decision, (3) thoughtfulness towards others.
Task 1: Find out the legal and ordinary meanings of the words,
construction, redemption and tender.
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Simplify legalese were possible:
There are occasions where using legalese and complex words
are unavoidable.
As much as possible make it a point to use simple words to get
your point across.
Unless the word is a term of art such as mens rea, if you can
substitute simple everyday English for Latin words do so. e.g.
inter alia – among other things
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Difference between British and
American English
George Bernard Shaw once said, the United States and the
United Kingdom are ‘two nations divided by a common
language’.
British and American English can be differentiated in three ways:
1 Differences in language-use conventions: meaning and spelling
of words, grammar and punctuation differences;
2 Vocabulary. There are a number of important differences,
particularly in business terminology;
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3 Differences in the ways of using English dictated by the different
cultural values of the two countries.
It is necessary to choose between British or American English
and then apply the conventions of the version you choose
consistently. If you muddle up British and American standards, it
implies that you do not understand that they are different.
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DIFFERENCES IN LANGUAGE-USE
CONVENTIONS :
See textbook
