Technical terms
Plain language does not ban technical terms or jargons or subject specific words. Such terms have special meaning in special conditions or disciplines. Plain language writers may choose to use an uncommon or technical word in their writing if they know the readers will be specialists who are familiar with the word. Technical terms can be really useful for lawyers in the sense that they can be a shorthand we are expressing a complicated idea such as ‘expressio unius’ which is a shorthand Latin for the legal maxim “expressio unius est exclusio alterius’ meaning ‘the expression of one is the exclusion of the other.” It refers to the doctrine that ‘to express or include one thing implies the exclusion of an unexpressed alternative’.
It is helpful for lawyers to write ‘expressio unius’ and more that other lawyers will know all the details that goes with it, but it does not help general readers. It is precise but unintelligible to the public at large. Using technical terms in legal writing is acceptable if the writer either explains what they mean or he's sure that all the likely readers will be able to understand.
In fact, it is not really the technical terms that cause problems for readers of legal documents. The main problems have more to do with the long sentences and unfamiliar, complex sentence structure. Using the occasional technical terms will not hamper the readability of the documents.
Besides ‘expressio unius’, there are some other technical terms go that really are useful labels. Things like affidavit, withholding tax, hearsay, injunction, warranty, and subpoena that don't really have a neat alternative.
What is Colorful language?
Colorful language refers to phrases that are used to describe particular legal concepts. Some wonderfully colourful phrases lawyers do use are ‘eggshell skull’, the fertile octogenarian (and her friend), the ‘precocious toddler’), the ‘man on the Clapham omnibus’ (or in Australia, the Bondi tram, or in Hon Kong, the ‘Shau Ki Whan tram’). Then there is the ‘snail in the ginger beer bottle’ and the verb ‘Mirandize’. ‘Snail in the ginger beer bottle’ refers to one of first judgements law students learn about. It is about the law of negligence and the principle of duty of care. The verb ‘Mirandize’ means to inform an arrested person of his/her legal rights.
The colourful phrase ‘eggshell skull’ suggests a rule, also known as thin rule, is simply a common law doctrine that makes a defendant liable for the plaintiff’s unpredictable and uncommon reactions to the defendant’s negligence. Similarly, the fertile octogenarian is a rule which suggests that a woman can have a baby how old she is.
These colourful expressions are used to create fun and they also help to make a legal principle easier to remember. They are descriptive and they enliven legal communication. In fact, colourful language stands for legal shorthand which is used to make communication lively and memorable. Michele M Asprey argues that lawyers should use such expressions if the readers are expert, or they can easily understand and if they function as legal shorthand to convey complicated idea in a pleasant and lively manner. But use of such expressions must not decrease the efficiency of legal communication.
What are the terms of art?
Terms of art refers to special terms that are loaded with meaning and might be difficult, or even dangerous to do without. In other words, ‘Terms of art’ are technical words used by lawyers as a legal shorthand to talk about particular legal concepts. They are words that carry heavy meaning in a particular context. Some examples of such words are ‘indemnify’, ‘estoppel. Michele M Asprey argues that ‘estoppel’ might be a term of art if someone is pleading estoppel as part of a cause of action or making a submission to a judge, referring to the doctrine of esoppel.
Professor Mellinkoff says that correct use of his terms of art marks a lawyer. This reflects the idea that use of terms of art must not be confusing and misleading. As these words are reserved for the experts, it is better to use true alternatives to terms of art. Michele M Asprey argues that there are alternative words that are easier and more common, and it may not be necessary to use the terms of art at all.
Legal buzzwords
Legal buzzwords are words and phrases which are odd for listeners, but they are more like the secret language of a club. They seem to be picked up at law school, perhaps from reading cases and from talking to lawyers. According to Michele M Asprey, lawyers pepper their conversations with expressions such as ‘on all fours with’, ‘cover the field’, ‘at first blush’, ‘jointly and severally’, ‘a fortiori’, ‘otiose’ and ‘nugatory’. Legal buzzwords seem to be reserved for the legal club.
Many lawyers use legal buzzwords as legal shorthand to make legal communication efficient. But if they have complex legal descriptions and they have easier equivalents there are no valid technical reasons for using them. If they create confusion among non-lawyers, everyday equivalents should be preferred. Those who intend to use legal buzzwords, they have to watch that they don’t set up barriers in communication.
Word strings (better to avoid word strings)
Lawyers love to use words. The words are tools of trade. They don’t want to leave any legal loopholes. It is their duty to imagine all the possibilities and make sure that they are covered. So, they pile up words to cover each individual case. But that can be dangerous.
Besides ‘expressio unius’ rule, there is also the ‘ejusdem generis’ rule to be used as a legal shorthand. This operates when a document has a specific word followed by more general words. The ‘ejusdem generis’ rule restricts the meaning of the general words to the same class or category as the specific words. For example, ‘my toolbox, my tools, and my workbench and the other things in my garage’ may not include my car because the general words may be interpreted as referring only to things in the tools/workbench category.
In both these cases, the writer would have been better off avoiding the specified items and leaving the general description to stand on its own. “Everything in my garage” is quite clear on its own and does not attract any garage rules of construction-although the writers should probably also check everything that is in the garage and maybe specify a time at which those items are to be counted.
The alternative, to get around both the ‘expressio unius’ and the ‘ejusdem generis’ rules is to use a phrase like ‘including but not limited to’ which shows that the list is not meant as a complete one. It is the word string that caused the problem and so it would be better to leave out the word string and rely on some suitable general words as long as they are clear and precise. list of words can be trouble unless you are absolutely certain that they are complete.
Synonyms
Even worse are the string of synonyms. String of synonyms refers to words of same derivation; doublets (two similar words) or triplets (three similar words). If they really are synonyms the string of words can be avoided altogether. Some examples of doublets are save an except, free and clear, fit, and proper, each and every, will and testament. Examples of triplets are ‘give devise and bequeath’, ‘null void and of no effect’, ‘rest residue end reminder’, ‘revise release and quitclaim’.
Robert Dick describes using synonym strings as a killing one bird with three stones. The problem is simply another example of what happens when writers do not select their words with care. It is all lawyers responsibility to know when to use particular words. If a word adds nothing, we should not use it.
Word clusters
Another way is that the lawyers pile of words. They usually do it at the beginning of a sentence, when they are circling around and winding themselves up to say what they have to say. It is the ‘word cluster’- a kind of throat clearing ritual.
Here are some examples:
It is important to note that………
It should be remembered that…..
We should point out that………
at this point in time……………….
Before we answer your question, it is necessary to refer to…………
You should take great care to ensure that…………..
We refer to previous correspondence in now advise as follows…….
Having regard to the foregoing………………..
All of these are meaningless and could be deleted. They are just a cascade of words that don't need anything. They are worthless. They are simply a waste of time and effort both for the reader and the writer.
Archaic words
Archaic words refer to commonly used words in an earlier time but rare in present-day usage. They are normally limited to religious rituals and historical novels. They are also considered ‘dead words’. If they are not technical terms and they are not terms of art, there is no reason to cling to the archaic language. The only possible reason of using archaic words is merely a habit. Use of such words can interference us with our ability to communicate with non-lawyers. Here are some examples of archaic words:
Hereinafter, witnesseth, these presents, the premises, hereby, herein, hereafter, heretofore, abovementioned, aforesaid, in witness whereof, the day and year first hereinbefore written, hereunto, unto and upon.
The really speak for themselves. Many of them, such as heretofore, hereinafter, abovementioned, and aforesaid are imprecise. There are sparkly good alternatives for all of them.
Many legislative drafters have long since abandoned these archaic words. Unfortunately, they still seem to pop up in private documents. Do I house this is due to our reliance on forms and precedents, which still contain archaic language. If so, even if there is no time for us to review all our old forms and precedents, we should at least make time now to search for and destroy all the archaic words.
To conclude, archaic words should be avoided from legal writing since they are not the words of everyday speech. A plain language writer must be able to find perfect alternatives to archaic words.
Definitions
Play music writers use definitions in their document to keep words under control. They are concerned with making their writing last and making sure it reflects the intention of those involved at the time of writing. most Australian legislation has a definition Section at or near the beginning for several purposes:
· They enable the writer to use our convenient shorthand label for complicated concepts, so that the writer does not have to repeat the long explanation each time the writer wants to use the concept.
· They can clear up ambiguity by allowing the writer to give details of what has meant by a particular word.
· They can also clear up ambiguity by allowing the writer to specify one of several common meanings, for example ‘month’ means ‘calendar month’.
· they allow the writer to be intentionally flexible about what a word means.
· They allow the writer to stretch the word a little to include things that would not usually be encompassed in the normal meaning of the word.at
Plain language writers rarely use definition for dictionary type definition. They use definition just to see what an unfamiliar word means. definitions can allow the writer to use that kind of shorthand in their documents. But with definitions, the lawyers should remember that the longer way round is sometimes the shortest way out. Even though definitions are a useful way of shortening a document they can often interfere with the flow of meaning in a sentence. The aim is not to use definitions to create a ‘code’ that the reader must know by heart to read a document.
Once only definitions
never define a word or phrase if you only use it once. If you define a word or a phrase and then use it only once, you don't need to use a definition at all. Put the full details in the text, where the reader needs it. Don't impose a definition on the reader unless it is going to be helpful.
Misleading definitions
Don't define suits to mislead the readers. Try to choose a label that is consistent with the full definition, so that the defined word can sensibly stand in the place of the full definition.
Too many definitions
Involving too many definitions in a document may be tiresome. Definitions can be extremely useful and without them documents would be much longer. But if we want to write in plain language, we must balance that advantage against the disadvantage that the readers suffer when faced with a very long list of definitions. Following are a few suggestions to keep balance in your plain document:
· Put the definition at the end of the document, but clearly mark the defined words, this time they appear, with a sign that shows they are defined.
· Make sure you have used it's defined Tom more than once. If not, don't use the defined word-put the concept directly in the text.
· Look at the defined words you have used only twice or three times. Would it be easier on the reader if you abandoned the defined term and put the concept in the text? Even if it makes the document slightly longer, it could end up being easier to read.
· Have you defined anything that is obvious? If so, cut the definition out.
· Make sure you have no definitions within definitions. That is beyond the pale.
Useless Definitions
It is not a good idea to impose definitions if they are not necessarily useful for the readers. For this, never define things that are obvious. for example, ‘animal’ includes dog or ‘agreement’ means this agreement. A plain language writer, should consider the following two things:
Elegant variation: this is an expression that is used to describe the way writers can vary the words they choose to avoid repeating themselves. This is most often done in fiction writing to make the writing interesting and lively. But there is no place for elegant variation in legal writing. We are in the business of being precise and so if we choose to use a word to refer to a particular concept, we should continue to use it whenever we refer to the concept. Otherwise, we deceive our readers.
Confusing labels: when you are choosing your labels for the words you are defining, don't choose confusing ones.
