Monday, June 20, 2005

Bringing back some classic legalese

Two little legal words are falling out of favor, and I’d like to do something about it. No, the words are not chad and tax. The two little legal words I am referring to are said and same, and they’re getting a bad rap.

We lawyers used to sprinkle these words into our letters, briefs, and agreements to give them that distinctive legal flavor, that unmistakable, musty odor that said, “A lawyer wrote this.” Or, in the more appropriately formal, and passive, construction:
  • The document was drafted by a lawyer. Said document is therefore the work product of such lawyer and can be withheld by same.

Unfortunately, most of us don’t write like that anymore. What a shame.

If more of us would take up the quill and apply ourselves diligently to the task, we might see a revival of Elizabethan usage. Indeed, we could see a return to the day when anyone could simply glance at a piece of writing and know that a lawyer had a hand in its preparation.

“Sure,” you’re saying, “I use said and same; I use them all the time.” I’m grateful. I thank you, as do young Legalese Revivalists everywhere. But let’s be clear: Are you using same as a pronoun and said as a demonstrative pronoun? Anyone can use said and same in their current senses, like this:
  • At trial, the witness did not say the same thing that he said in his deposition.
That’s easy. You don’t even have to be a lawyer to write that. What I’m talking about is the more sophisticated and lawyerly use of said and same, like this:
  • At said trial, said witness did not testify to the said identical said thing that he recounted in said deposition. Said testimony differed from same.
Now that’s the kind of usage I’m looking for. Maximize the legalese. Make it dense. Pack in so many uses of said and same that no one can doubt that you are well versed in law.

My effort to revive said and same has three phases.

Phase one: Silence the critics
A growing number of so called “writing experts” are trampling on said and same. These naysayers toss out words like “modern” and “contemporary,” and they get awfully pushy about using today’s English. Here’s a sampling of their comments:
  • Said should be rigorously eschewed . . .” (Garner)
  • [s]aid is . . . . useless.” (Wydick)
  • Same . . . is avoided by all who have any skill in writing . . .” (Fowler)
I respond that there will always be a place for the classics, for tradition, and for obfuscation. These words, said and same, link us to the past, to the grand traditions of the common law, to livery of seisin, to trial at nisi prius, and to dower and curtesy (I think).

So as part of phase one, I urge you to turn a blind eye and a deaf ear to the plain-English extremists who are pushing you into 2002. Stay rooted in the grand traditions of English in 1952. Or 1852, if you prefer.

Phase two: Bring in the next of kin
Once we have gotten said and same back into current usage, we can build on that success by introducing a new use for same and by bringing back one of said’s relatives. In the next model text, we can see that same is moving from direct object to subject—a more prominent and appropriate place for this venerated word. We have also introduced aforesaid, said’s neglected older sibling.
  • At the aforesaid trial, the aforesaid witness had not testified to the aforesaid identical aforesaid thing that the aforesaid witness recounted in the aforesaid deposition. Same differed from the aforesaid same.
And once we bring back aforesaid, we can take the big step to the grand-daddy of classic legalese, aforementioned.

Ultimately, I’m thinking even beyond these two words. I’d like to see other arcane and little-used words make a come back, so we can once again freely use witnesseth, instanter, and herebywithin without getting strange looks. And if we stay the course, we might even see the day when vel non is used again, or even simpliciter, though it’s probably just wishful thinking.

Phase three: Expand to speech
Once you’ve welcomed said, same, aforesaid, and aforementioned back into your written work, it will be a small step to include them in conversation. Of course, at first, you’ll have to restrict yourself to using them in court:

Judge: Counselor, please rephrase the question.

You: I acknowledge that the aforementioned question was poorly worded, your honor, and I will rephrase same as per your order.

But soon you’ll be using them at the office:

Boss: Have you finished that memo on toxic mold? I need it before my depositions tomorrow.

You: Said memo is nearly completed, and I’ll have same on your desk within the hour, although the aforementioned depositions are not actually scheduled until next week. I just noted same on my calendar.

Eventually, you’ll probably be able to work them in almost anywhere:

Spouse: Honey, would you care for more salad?

You: The aforementioned salad was delicious, and I would, indeed, enjoy more of same.

That may seem like an unreachable goal right now, but hang in there. Stick with it. Said and same are back, and they’re back to stay.

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