What’s the language with the greatest vocabulary?
Answer: English. The Oxford English Dictionary records about 170,000 English words in current use, and with new words being created nearly every day, like “Covid” and “Bitcoin”.
Legal language is called “Legalese” and can serve a useful function. For example, in the drafting of Contracts to help the document achieve clarity and precision when read by another lawyer. What if the document was not intended for this audience? The best lawyers are able to switch between legalese (language designed to help fellow lawyers or the Court) and explaining these legal terms in plain English language to help someone not familiar with the law, and specifically the clients of the lawyer.
Examples of legal phrases which succinctly capture a specific concept, and their respective meaning:-
- Ademption: when a gift in a Will cannot be made because the item no longer exists.
- Adjourned sine die: when a Court case has no fixed date for its continuance.
- Arraignment: a procedure in Court when the details of the charge are read and the Defendant is asked to say whether he or she will plead guilty or not guilty.
Fun fact: the Macquarie Dictionary’s Word of the Year: Cozzie Livs, which is short for “the cost of living”. This selection has created much discussion with some disappointment due to the reflection of the loss of traditional English. Yet language is alluvial, which means that its data banks shift with generational tides. For the English language (and including legalese) to be relevant, the shifting must be constant, which makes us wonder at the new words yet discovered which await us in the future.
However, legal words and phrases can be confusing. Not only can sentences in legal documents be extremely lengthy yet they can often include terms in Latin. Examples, “ergo” or “de facto”. And, best of all, legal documents sometimes including old-fashioned English words such as, “heretofore”, or “herein” or “forthwith”. It is no surprise then that the Cambridge Dictionary defines “legalese” as:
“language used by lawyers and in legal documents that is difficult for ordinary people to understand”.
Why is it this way? It is sometimes argued that the language style (in legal documents) is driven through the objective of removing ambiguity, yet other lawyers (including myself) admit that the legal language could be simplified (at least in many circumstances).
The topic of ownership is an example where legal language can be helpful to define the particular characteristics. You can be an owner without having all of the legal rights over the item owned. For example, A could be the owner of a block of land in Paddington, B has a right of way through the property, C has some other easement, while E has a life estate in the property and the bakery on the property is leased to D. In the drawing of a Contract, the use of legalese will likely assist in the defining of the various interlocking yet distinct rights and obligations between these individuals.
Another example of the importance of language in defining legal rights is in the recording of the terms of settlement of legal cases. For example, one of my clients agrees to accept a payout of financial compensation from a CTP insurer (for injuries sustained in a motor vehicle accident) for a value of $350,000.00. After the accident (and prior to the settlement of the case) my client was helped by the insurance company funding medical treatment, physiotherapy and medication, which amounted to $30,000.00. It would be very important then for the settlement terms to be define whether the payout price ($350,000.00) was intended to be inclusive or exclusive of the costs already paid by the insurance company. The comparison in the 2 scenarios is a difference of $30,000.00 (because my client would only receive an additional $320,000.00 if it was intended that the payout was inclusive of the costs already paid, whereas defining the payout as exclusive means that the entire $350,000.00 is in addition to the costs already paid by the insurance company).
Another example of the power of language in defining legal rights: two friends buy a unit in Broadbeach together. When one dies, does that person’s share pass to the other? The answer depends on the legal status of their joint ownership, with two main options:
- “Joint Tenancy” is the phrase that defines the status in which the surviving person automatically becomes entitled to the entire property, whereas,
- “Tenants in Common” is the phrase for the status in which each person owns a prescribed percentage of the property such that on death that share of the property passes via inheritance law.
There is a variation too with the USA legal system creating difference in legal words compared with Australian lawyers’ terminology. For example, the use of the expressions in English such as “Deposition” (the testimony of the witness) and “Discovery” (the activity of assembling evidence) are typical for USA lawyers (and in USA Courtroom TV shows, like “Boston Legal” and “The Good Wife”), yet have no use with Australian lawyers because the Australian legal procedure is different to the process under the USA legal system.
Sharing with you a final example of the emotional power of English word description from the famous USA lawyer (and President), Abraham Lincoln:
“Tact is the ability to describe others as they see themselves.”