Lawyers create in words – we don’t make a “thing” you can touch other than words on a piece of paper. Legalese is the term used to describe the old-fashioned and technical writing often used by lawyers. Let me tell you where legalese comes from, when to use it (and not use it) and why it might lead to Donald Trump beating Impeachment.
Here is an example of legalese found at the end of a deed:
In witness whereof the parties hereunto have set their hands to these presents as a deed on the day month and year hereinbefore mentioned.
So, why not draft the legal document the simpler way? Lawyers write this way for two reasons. First, our legal system is based on juris prudence which means cases from the past spell out the current laws and therefore, lawyers often quote from cases 50, 100 years old – I once quoted from a case from England from the 17th century. So because we quote from old cases, that very formal old-fashioned style of writing tends to creep into our legal writing – especially the use of Latin.
As a quick aside – my favorite latin legal term is “Habeus corpus” and it literally means “produce or bring the body” and it’s used when a person is being held in prison and their lawyer wants them brought in front of the Court to determine why they are being held. I like to use it with my kids when they are in the bathroom a long time: “Hey, I’m giving you a Writ of Habeus Corpus”. Yeah … Is that weird?
Anyways, the second reason for legalese, all of the “heretofores” and “wherefores” in legal writing allow us to not have to mention things all over again. When drafting a contract, you can’t assume anything, so instead of listing all the people who are a party to a contract all over again at the end you use “parties hereinbefore mentioned.” “Wherefore” just means you are beginning a conclusion. It’s actually a timesaver.
So that’s where legalese comes from, now, when should you use it yourself and more importantly when should NOT use it?
Legalese in general is useful when you wish your writing to carry authority and carry a high level of formality. Just, take it easy with it. For example, you are writing an employee handbook of regulations for your company, it’s more authoritive to write: “All heretofore mentioned dress-code regulations are in full force and effect except on Fridays on which day all employees may dress in jeans.” Is more formal and authoritive than: “Friday is jeans day!!”
The major downside to legalese is that is sucks all of the passion and emotion out of your language. For that reason, I stay clear of any Latin-based or legal terms during opening statements. You could say at opening “At this point the vehicle driven by Ms. Smith impacted the vehicle in which Mr. Jones was the occupant.” If you want to lose. But it’s better to say “That’s when Ms. Smith smashed her truck into Mr. Jones car” Good old Anglo-Saxon words carry more emotion and impact.
And that brings me to President Trump and why word-choice might save his Presidency from impeachment. As I film this, the allegations in the press are framed as the President proposing a “Quid pro Quo” with the Ukraine – “ A tit-for tat” or an exchange. The word choice is unfortunate- or fortunate depending on your political leanings – because no emotion or evil intent is portrayed by the word “Quid pro Quo” – it’s a benign Latin phrase and therefore we are less likely to see the public and, importantly, Republicans, get on the impeachment bandwagon.
If instead the press and Democrats had latched onto the word “Bribery” or maybe headlined that the President “threatened” the withholding of aid – they would have a better chance. “Bribery” “threat” – these are words that carry negative emotional connotations.
Certainly asking for a “quid pro quo” doesn’t seem like the High-crime and misdemeanor that the Constitution demands for impeachment.
And there you have it – the basis for legalese, when not to use it and how it just might save Trump’s presidency.