CREATORS
December 16, 2025
What is
legalese? The New Oxford Dictionary defines it as "the formal and
technical language of legal documents that is often hard to understand."
Why would
a professional write a document that is intentionally difficult to understand?
A lawyer, who else, might argue that legalese provides precision and creates
formality. Technical language is intended to define rights and obligations
without room for misinterpretation.
Legalese
has long been condemned from every quarter, including the U.S Supreme Court.
The late Justice Antonin Scalia was once asked what characterized good legal
writing. He declared, "(b)eyond pure literacy, avoid legalese." He
suggested, "A good test is, if you used the word at a cocktail party,
would people look at you funny?"
However,
Scalia was the same guy who wrote in his dissent of the decision striking down
the Defense of Marriage Act that the majority opinion was "legalistic
argle-bargle." Not sure that argle-bargle would pass the cocktail party
test. Argle-bargle means "imbroglio," excuse me it means
"fight."
Legalese
has been an increasing object of derision. During World War II, Maury Maverick,
a U.S. Congressman from Texas and chairman of the U.S. Smaller War Plants
Corporation, wrote a memo banning "gobbledygook language." Maverick's
word has been accepted into the American lexicon. Merriam-Webster defines
gobbledygook as "speech or writing that is complicated and difficult to
understand."
To put
legalese into context, here is what the blog "Words to Deeds"
believes the children's rhyme Jack and Jill would sound like if written by
lawyers: "The party of the second part hereinafter known as Jill ...
Ascended or caused to be ascended an elevation of undetermined height and
degree of slope, hereinafter referred to as 'hill.'"
What is
the big deal about legalese? Nobody reads their mortgage or their credit card
agreements. If an individual has a contract to read or understand, they bring
it to a lawyer. Is legalese about precision or job security for lawyers?
The
greater concern is that obtuse language extends beyond contracts and
agreements, right to the heart of liberty and freedom. A defendant charged with
a crime is entitled to a lawyer - a competent one. The accused is also entitled
to a jury of his or her peers and here is where it gets tricky.
Before a
jury retires to deliberate the fate of the accused, the judge provides those
jurors with instructions to assist in their decision-making. Unfortunately,
those instructions are legalistic and often difficult to understand.
A report
published in The Trial Expert, a publication of the American Society of Trial
Consultants, found, "the reading levels of instructions are frequently at
or above the twelfth grade, a result that is inconsistent with the average
reading level of the American adult."
The report
continued, "Considering that less than fifty percent of adults possess the
basic skills and knowledge necessary to read and comprehend moderately
difficult reading passages, it's not likely they are able to synthesize the
complex language present in jury instructions."
That is a
mouthful, but simply put, one in two jurors is confused by the language used to
help them decide the fate of a fellow citizen.
Megan
McAlpin, a professor at the University of Oregon School of Law, told Jack
Hamann of The Writer, "I think there's a desire to sound smart. But you
sound smarter if you can take something complex and make it clear to anybody.'
Albert Einstein, a pretty smart guy, once said, "If you can't explain it
simply, you don't understand it well enough."
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book
The Executioner's Toll, 2010, was released by McFarland Publishing. You can
reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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