Monday, June 02, 2008

Ten legal words and phrases we can do without

Ten legal words and phrases we can do without
Austin Lawyer, May 2008

Part of becoming a lawyer is mastering legal vocabulary, be it archaic, fancy, or Latin. It's an important part of what law students and novice legal writers have to learn. But part of becoming an expert legal writer is shedding the archaic, the fancy, and the Latin. Too often, those legal words do nothing but make the text sound like a lawyer wrote it. Always, there are effective alternatives.

I'm trying to drag legal vocabulary into 2008. Goodness knows we don't need words from 1908, let alone 1708. So here are a few legal words we can leave behind.

Why use this outdated word when its shorter cousin, aforesaid is available? I'm kidding. Eliminate them both and specify the place you are referring to.

comes now
A lawyer once asked me to settle a debate at the office: “If there is one plaintiff, it's 'COMES NOW Rodney Jackson, . . .' But if there are two plaintiffs, shouldn't it be 'COME NOW Rodney and Melinda Jackson, . . .'?” Of course, I told him that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.

Almost all the here- words should go, but this is the most annoying. It's old and vague. As with almost all legal writing, the better approach is to specify what you are referring to and where it can be found.

inter alia
Latin words that aren't terms of art, as this one isn't, ought to be eliminated: vel non, sub judice, sua sponte, and others. But this one I particularly dislike. Let's use the everyday-English equivalent: among others or among other things.

instant case
This case, our case, the Jackson case, and the current case are all better.

As an adjective to designate a noun that has been mentioned before, this word is no more precise than this, that, these, those, and the. All it really does is make the text smell legal.

subsequent to
Its cousin, prior to, is only slightly less pretentious. Expert writers who want clean, vigorous prose prefer before and after.

This word has no place in modern legal drafting. If you prepare transactional documents, and you're afraid to take it out, be brave. And look it up: you don't have to take my word for it. One expert calls it an “antiquarian relic.” Black's Law Dictionary 1634 (Bryan A. Garner, ed., 8th ed., 2004)

-trix suffix words like administratrix, executrix, prosecutrix, testatrix
In 1992, a legal-vocabulary expert said these forms were “dying.” David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage 600 (1992). We can no longer wait around. Kill them off now. They're sexist, archaic, and hard to pronounce.

For further guidance on outdated and useless legal words, see

Adam Freedman, The Party of the First Part: The Curious World of Legalese (2007).
Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).
David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage (1992).

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