4. Legalese

Legal Language

Legal writing in English has developed over hundreds of years and is characterised by specific features, some of which can make it difficult for the non-lawyers to understand. Characteristics of legal writing include: using Latin terms; using technical terms (“subsidiarity”); using old-fashioned words not much in general use; using pair of words with reciprocal relationship (‘lessor’/’lessee’); using legal jargon (‘without prejudice to’) including the use of pairs of words (‘terms and conditions’), or triplets (‘build, erect or construct’); having special meanings for words in ordinary use (‘the judge determined the fact of the case’), where ‘determined’ means ‘decided’; using vague words (‘provide a sufficient service’); using long sentences with little punctuation; inverting word order (‘title absolute’); using capital letters to signal important or defined terms (‘the terms of the Lease…’) avoiding personal pronouns (‘you’, ‘we’, ‘I’); the specific use of the modal verb ‘shall’ to impose an obligation or duty on someone (‘The tenant shall not sub-let the whole or part of the premises.’); the use of ‘shall’ in a directory sense (‘Notice of an appeal shall be filed within 28 days.’)

There is a movement to draft legal text in standard, modern, ‘plain’ English but any change will be slow.

Latin terms

There are many legal terms in written English legal texts, although recent reforms in the English justice system have encouraged the use of English rather than Latin. Some Latin terms are used so frequently that they are in general English use (e.g. ad hoc, bona fide, pro rata, etc.). It is useful to be able to recognize their meaning and a dictionary or online glossary will help. Forms of pronunciation vary.

Older words and modern equivalents

A number of linking terms are used in older written legal texts (case reports, legislations, court documentations, contracts, etc.) to refer to other parts of the same text, to different legal documents, or to related contexts.

One of the proudest boasts of the Englishman is of the British justice and the English legal system. In their pride they follow the tradition of Rome, but in their law they owe less to the Romans than almost any country in Europe. Much less, for instance, than Scotland, which has a quite different system of law from England. This peculiar English system has its own peculiar terms: to understand them you must understand a little of the system itself.

In England the legal profession is really two separate professions: solicitors and barristers. The solicitor is probably the more ancient profession. He descends from the notaries and attorneys of Elizabethan times and indeed even earlier. Only on the introduction of a solicitor can a client employ a barrister, who is referred to as a counsel. The solicitor summarises his client’s case for counsel, and the document on which he does so is called a brief. A barrister retained by a solicitor for a client is said to be briefed for him.

It is from the ranks of the Bar, as barristers corporately are called, that judges are chosen. The Bar referred to is a physical bar in the Courts, beyond which no one may pass except the privileged Queen’s Counsel who have been called within the bar. Judges, thus, are not themselves a separate profession; they are barristers who have been elevated to the Bench, itself name derived from the part of the Court where they sit.

The judge decides the interpretation of the law, but, in serious criminal cases, all questions of fact are decided by a jury. Juries may also be found in civil cases, that is disputes other than criminal trials. By means of the jury, the man in the street enters upon the legal scene. In England a jury in a criminal case can return only one of two verdicts: Guilty or Not Guilty.

In order to prove its case beyond reasonable doubt the prosecution calls evidence. Since the prosecution is conducted in the name of the Queen / King, a criminal who decides to give evidence against his accomplices is to turn the King/Queen’s evidence.

In examining his witnesses counsel is forbidden to ask questions which suggest the answers he wants. Such questions are called leading questions and are permitted only in cross-examinations, that is, the procedure by which, after he has given his/her evidence-in-chief, a witness is further questioned by counsel for the other side. In this way the full meaning and value of the evidence is tested.

After all the evidence has been given the judge summarises the case, both law and facts, for the benefit of the jury. This is called the summing-up.