Opinion | Vail Law: Yes, I speak Legalese

A few days ago, I was texting my son’s fiancé about an upcoming family trip. She was waxing poetic with me, using names and terms for things I had not previously heard.

I replied to her, “I speak English and passable Spanish. I can clumsily grunt my way through a French or German menu. I can be more misunderstood than understood in Italian, and spit out a few choice words in Yiddish. And I am fluent in Legalese!”

Which brought a laugh or, at least, the pictorial representation of one.

It is, however, true. My Legalese is impeccable. I am familiar with the terms and acronyms. When an associate advises that he is working on a MIL, a paralegal on some RFPs, or a partner is toiling on a MSJ, I know that they are, respectively engaged in a Motion in Liminie, Requests for Production of Documents, and a Motion for Summary Judgment. When a memo highlights an OP, OC, or the COA, a light flares up within me, translating these to Opposing Counsel, Opposing Party or the Court of Appeals.

I suppose all trades, professions and undertakings have their own special lexicons. Law, perhaps, is more entrenched. Which raises the question; why do lawyers speak so funny? Well, they don’t. At least not to each other or to the court.

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Ever since I have been at this trade of law, there has been a motion afoot to simply speak in plain English. Let’s cast aside the Latinisms and the oldy-moldiness of the English Common Law from which our laws emerged. Just as we have cast out powdered wigs, so too should the circumlocutions with which law is rife be relegated to the dustbin of legal history. But, hold on a blessed minute! What may to the uninitiated seem like gobbledygook, in fact promotes precision.

While, admittedly, some of the vestigial Latinisms are pretentious (one of my favorites, “ixpse dixit”, comes to mind), at least in part, the lexicon of law is like a scalpel in a surgeon’s hand, meant to elucidate and cleanly cut, rather than to obfuscate or hack a wound. When I throw in an “inter alia,” here and there, instead of me belaboring a point, the court knows in shorthand what I mean. If we lawyers had to lay out and explain every last word, confusion — to say nothing about attenuated length — would be, rather than a cure, a curse. Someone once said that only a lawyer could pen a 50,000 word harangue and have the temerity to refer to it as a “brief”!

But I digress…

The reasons for Latinism and other stylisms of the law are varied. Some of it, no doubt, is habit. Some of it is the language (even not in Latin) of the law. Some of it is accepted legal craftsmanship, and some of it results from borrowing. If, since legal time immemorial, lawyers have “heretofored”, “forsoothed” and “wherefored”, like smoking or other bad habits, it is a hard one to break.

And then there are the formalities to consider. What other profession greets the referee as “Your Honor,” who else refers to their opponents as “learned counsel?” Who else begins a presentation before whatever happens to be the particular forum of its profession with the equivalent of “May it please the court?” What other profession “prays” for “relief?” And while we’re at it, although the zebras of the NFL wear stripey shirts, what other professional enterprise requires dark robes of its adjudicators with knocky hammers in their eager fists?

Where one often starts in law is with precedent. When a new matter pops up like a Whack-a-Mole, it’s time to hit the books. And a lot of precedent is oldy-moldy stuff, which can be highly stiff and formal. My father, a physician, who was Czech, decided late in life to add a law degree to his impressive resume. Although he was fully fluent in Slavic-accented English, the olde English of the foundational cases upon which modern law is built, not surprisingly, stopped him in his tracks. Imagine, if you will, a non-native speaker making sense of Shakespeare. Yeah, like that.

What “precedent” means is what has come before. It is like the swell of a wave before its break upon the shore. Much of what the court does and how things get resolved is based on what courts in similar situations have previously done. And, as a consequence, a lot of language is imported.

There is also the often-formalistic language of legislatively created laws to consider. Try making heads or tails of the often wind-baggy cadences of statutory law and you’ll see what I mean. One runs out of finger with which to mark one’s place in order to maintain continuity and reference.

Then there is, of course, ego, too. And let’s not dismiss bumptiousness and pomposity. It is not unusual to conflate — or confuse — erudition and verbosity with or for wisdom. “Simple, Dizzy Gillespie once declaimed, “ain’t easy.” 

The goal, however, of every lawyer should be effective communication.

I, nonetheless, like a vanishing Navajo dialect, remain natively fluent in riffs and subtleties of formal Legalese!  And suppose I will until AI, at last, rudely nudges me aside.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels are available at fine booksellers; the latest, “Falling,” was published in November.