On 9th November 2022 Justice Chandrachud became the 50th Chief Justice of India. After he took the oath, he said "To serve the nation is my priority. We will protect all the citizens of India, be it in terms of technology or registry reforms, or judicial reforms.”
Assentio mentium! Or simply put, the meeting of minds. I concur with the CJI. However, for a layperson this may sound like a magical spell from a Harry Potter novel, unless explained in plain language. Legalese is a writing style adopted by the legal professionals, which ideally, should be harmless, until it is condensed to a gobbledygook form, which becomes impenetrable to a common mind. Simplifying legalese is not new, it began before the age of steam and continues to be relevant. This primeval, purple prose, jargon laden, Latin, pompous and dense specialized language of a unique tribe of legal professionals differs from what may be considered as ‘legal language.’ It is vital that we acknowledge the existence of this distinction, before offering a solution.
The case for plain-language use is not intended to transform legal professionals’ writing style to mirror bloggers or journalists. The appeal is to adopt a few reliable techniques so a layperson can more easily understand legal professionals and their work. No one wants to dumb-down the noble profession. It is the folly of the few to believe that legalese is a tradition, even when most of them are unable to comprehend their own work.
Comprehension and clarity will always remain the fundamental goal of legal writing and legalese needs to be part of it and not transverse to a different orbit. Recently a bench of the Supreme Court of India, described a high court judgement as inexplicable, unbelievable, and incomprehensible. Justice Chandrachud remarked, “The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language.”
The inertia does not seem to be exclusive to the judiciary. Corporations, especially their legal department have enrolled into this tribe. It is eminent that better contract drafting leads to fewer disputes and fewer disputes means happier clients. However, contract drafting remains an unscientific activity, typically replicating precedents, boilerplate provisions.
Why is legalese in vogue? Charles Dickens in his novel ‘Hard Times’, said “We talk about the tyranny of words, but we like to tyrannise over them too; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important and sounds well.” The issue of use of this dense legal language seems deep rooted. Therefore, the solution needs to be introduced at the foundation level – at the law school. I always yearned for some training in legal writing and effective legal communication.
From an in- house lawyer metamorphosising into a business counsel, my journey has been of unlearning and relearning a spectrum of skills, primarily the art of communication. There is a lot to unlearn for an in-house lawyer to transform into a business counsel. Speaking the language of your audience is a key to prioritize and communicate.
A reorientation of the conventional mindset to unlearn the superfluous and obscure skill of legal writing to writing in plain language is required. The legislators, judiciary, lawyers, in-house counsels, corporations, all need to work in their respective realms to campaign for use of plain language, to effectively connect with their audience to justify a sense of fairness to them. It is not only what we write, but how we write it. Let us shun this obsession, inertia, and have no fear of change. As AI and ML re-envision the profession, its legal language and not legalese what machines should be learning!
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