Illinois Bar Journal

October 2016Volume 104Number 10Page 52

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Loss Prevention

Escaping the Verbiage Vortex

artwork for article

Are you living down to the stereotype of lawyers who are incomprehensible to laypeople? Do yourself and your profession a favor and make clarity, not confusion, your goal.

Verbiage: Needless accumulation of words, verbosity.

- The Concise Oxford Dictionary

In the movies, lawyers use "legalese" - an arcane, jargon-filled language that only lawyers understand - to bamboozle laypeople, whether for good or ill. For example, in the movie Legally Blonde,1 first-year law student Elle Woods agrees to help Paulette Bonafante, her manicurist, get her dog back from her ex-live-in-boyfriend, Dewey.

When they arrive at Dewey's broken-down trailer, Elle introduces herself as Paulette's lawyer and launches into a convoluted speech about property rights and common-law marriage, concluding, "Due to the fact that you retained the residence, Ms. Bonafante is entitled to full ownership of the canine property in question and we will be enforcing said ownership immediately." Dewey, clearly bewildered, says, "Huh?" Elle turns to her friend and says "Tell him, Paulette." Paulette triumphantly translates for Dewey: "I'm taking the dog, dumbass!"

But real-life lawyers should not need translators - in fact, we are often called upon to be translators of complex facts and concepts. The litigator takes complicated facts and law and distills them into a straightforward story that is not just comprehensible but compelling to a judge or jury. The contract drafter chooses language that will reflect the "real deal" long after the contract is signed, in the crucible of a disagreement between the parties. The goal is clarity, not confusion.

It's easy, though, for lawyers to get sucked into the "verbiage vortex." We are marinated in a brine of obscure, redundant, goofily pretentious language in law school and continually basted with it in law practice. Is it any wonder that some of this prolix pomposity sneaks into our writing? It's like visiting London for a week and finding that you're ending phone calls with "Cheers!" instead of "OK, bye" or whatever you used to say before you ventured across the pond.

But when lawyers use overly ornate, movie-lawyer language, the consequences can be much more serious than the accidental adoption of Anglophilic argot.2 The verbiage vortex can obscure our message, impair communications with clients, and may even send the subliminal message: "Don't even bother trying to understand this stuff."

Let's do what we can to fight the stereotype of lawyers who are incomprehensible to laypeople. Here are a few ideas about how you can win that battle.

Make it simple

And he was always quietly arrayed, and he was always human when he talked.-

"Richard Cory,"
-Edwin Arlington Robinson

When you can, keep your language simple.

When I talk to non-lawyers about reading contracts, I tell them my Batman Rule. The Rule refers not to the dark, mysterious Batmen of recent movies, but to the Ur-Batman (of the screen, anyway) - the campy Caped Crusader played by Adam West in the 1960s TV show, Batman.

Even in an emergency, TV Batman never used short phrases when a blizzard of multisyllabic blather would do the job. For example, in one episode, the Riddler threatens to lay waste to Gotham City with a "Demolecularizer," and demonstrates its power by making a park statue3 disappear. Chief O'Hara, investigating, reaches out to touch the pedestal where the statue formerly stood.

At this point, a reasonable citizen-crimefighter would yell a pithy warning like, "Don't touch that!" But not Batman, who dramatically intones, "Careful, Chief O'Hara - whatever unknown force was deployed in demolecularizing [that] statue may have left a contaminating residue on the pedestal."4

The Batman Rule states that contract reviewers should watch for and investigate any odd, wordy phrase that no one but Batman would say out loud, because lawyers sometimes talk and write this way, too. Sometimes the weird wording is a legal term of art like "time is of the essence," which means a good deal more than "time is important" (and, unsurprisingly, was often employed by Batman when a simple "Hurry!" would suffice). Sometimes legal jargon is unavoidable, but the contract reviewer needs to make sure she understands the full meaning of these "magic words."

Other times, though, the phrase is just a twisted snarl of verbiage that is ambiguous at best and incomprehensible at worst - even to the party proposing it - and it needs to be untangled. The excuse of "It's just lawyer boilerplate" is not acceptable. A contract can't be a true "meeting of the minds" unless both parties understand what it means.

Does your written communication violate the Batman Rule? Yes, some legal concepts are complex and some terms of art are necessary in legal writing. There is no need to "dumb down" your ideas. But consider leading your own crusade - caped or no - against unnecessarily ornate language that hinders rather than helps the reader's comprehension.

If you can't make it simple, make it right

Your lips move, but I can't hear what you're saying -

"Comfortably Numb,"
-Roger Waters and David Gilmour

If you're going to use fancy words and phrases, make sure you're using them correctly, even if other people don't.

Here's an example: There seems to be a trend among business and legal writers to use the phrase "as such" in place of "therefore" (or, I suppose, "hence," although that word has a certain eau de Batman), like this: "The court lacks subject matter jurisdiction. As such, it must dismiss the case." This is wrong, even though lots of smart people are doing it.

Here's why: The phrase "as such" operates as a pronoun, and like any other pronoun, it needs an antecedent noun. In other words, "such" needs to be referring to a noun that precedes it. You can tell if you've got it right by finding that noun and swapping it for "such."

• Right: "The defendant is a felon. As such, she is not allowed to own a gun." Replace "such" with the preceding noun, "felon," and the sentence makes sense: "As a felon, she is not permitted to own a gun."

• Wrong: "The court lacks subject matter jurisdiction. As such, it must dismiss the case." Neither of the preceding nouns - "court" or "jurisdiction" - makes sense in the place of "such." "As court, it must dismiss the case"? No. "As jurisdiction, it must dismiss the case"? That doesn't make sense, either.

In the words of Bryan Garner, author of Garner's Modern American Usage, "Obviously, this phrase requires much care."5 There is no shame in foregoing "as such" altogether and using a simpler, more familiar term.

It's fair to ask whether proper usage matters, if the reader understands the writer's meaning. In the "wrong" example above, it's evident that "as such" is meant to be a synonym for "therefore." So what's the problem?

For readers who notice the error, the problem is that the misuse is a distraction (where is that antecedent noun?) and may call into question the writer's credibility (what else is she getting wrong?). It's the writing equivalent of wearing a hoodie and yoga pants to an interview instead of a proper suit. Sure, you're the same brilliant lawyer whether you're clad in performance fleece or pinstriped wool and starchy cotton that makes you itch. But first impressions matter - always have, always will.

Some readers may note, correctly, that language evolves. Yesterday's error is today's standard usage. All of the dinosaurs who know the proper use of "as such" and get fussy about it will someday be dead or at least way outnumbered by people who don't know or don't care. (And about the hoodie thing - someday we'll all be wearing them to work. Mark Zuckerberg does it already!)6

Well, maybe. But in the meantime, those dinosaurs are reading your status reports, your briefs, and your research memos. They make decisions about hiring law firms, granting motions, and giving summer associates permanent job offers. First impressions matter, especially to doomed, pinstriped saurians.

Escape the verbiage vortex

As Paulette might say, "We're taking back our image, dumbass!" Let's do what we can to defeat the presumption that when lawyers talk, regular people should abandon any hope of understanding them.

Karen Erger
Karen Erger is vice president and director of practice risk management at Lockton Companies.

  1. Don't judge me. Legally Blonde is my go-to movie when I have the blues or just feel gravity's pull too intensely. To me, the idea of a cheerful, optimistic, well-groomed first-year law student is every bit as improbable and enchanting as the talking animals of Disney or the magical powers of Harry Potter and the Hogwarts crew.
  2. Apologies for the awkward alliteration.
  3. Do you always type "statute" when you mean to type "statue"? I sure do.
  4. Batman, Season 2, Episode 46 (1967).
  5. Bryan A. Garner, Modern American Usage 71 (3rd Edition 2009).
  6. For some other ideas (for men, anyway) about what to wear when you're as rich as he is, see Alex Hawgood, The Men Powerful Enough to Wear the Same Thing Every Day, New York Times, April 3, 2015. Perhaps these ideas are only for men because women don't need help dressing themselves. See Karen Erger, The Appearance of Professionalism, 102 Ill. B.J. 300 (June 2014).

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