By Dr. Ken Broda-Bahm:
Every trial lawyer I know believes that they are adapting their communication in order to get the jury — or, for that matter, the judge — to understand. At the same time, they will still try to be concise, correct, and specific. Sometimes, the competing demands can lead lawyers into speaking what seems to be a different language. “Up to this point” might become “heretofore,” “under” might become “pursuant to,” and “cancelled” might become “null and void.” While this tends to be a greater problem in legal writing, oral presenters are not immune to falling into what’s come to be called legalese or a specific set of often archaic terms combined with an overly formal and complex style of sentence construction.
Why do lawyers use it? Some might say it is because the law demands it, being built on specific terms with specific meanings. Others might say that it is laziness or habit, latching onto dated statutory language when more common and direct expressions are available. Recently, a research team from MIT and the University of Melbourne (Martinez, Mollica & Gibson, 2024) took a close look at the scope and reasons for the law’s language differences and found support for what they call the “magic spell hypothesis.” They found that, when research subjects believe they are creating a legal text, they will write in a more complex and convoluted manner — more so than when they are creating other texts with similarly complex subject matter and geared toward similarly educated audiences. Legal communication seems to differ, not based on a need for greater precision or efficiency but based on an implicit desire to give the language greater weight and authority. In other words, people will use less common and less comprehensible constructions because the “magic spell” of a performative legal utterance seems to require it. In this post, I will take a look at these findings on the reasons for legalese and share some practical thoughts on steps legal persuaders can take to avoid it.
Legal Language as Magic Spells
The research team responsible for this study has conducted past research that I’ve discussed in this publication. A previous study looked at the features of legalese — longer sentences, center-embedded clauses, less common words — and found that these forms are highly prevalent in legal communication, and are also less likely to be comprehended, retained, and used by their target audiences. They also found that these denser styles can nearly always be simplified into other more understandable forms without a loss in specific meaning.
The present study replicates that finding, based on a corpus of 59 million words, finding in legal documents “strikingly higher rates of complex syntactic structures.” It also finds that these constructions are used, not because they communicate well, but because their use feels like it invokes a kind of power by the user. “Law’s complexity,” they find, is “derived from its performativity,” in the sense that legal communication isn’t designed just to describe the world, but to actively change it. The “magic spell hypothesis,” in their view means that “lawyers and lawmakers write in a convoluted manner in order to lend legal documents a ritualistic spell-like element.”
For their research, they recruited average citizens and found that, when asked to create a legal text (rather than to generate a purely descriptive text like a story) they would naturally alter their authorial voice in the direction of greater formalism and less comprehensibility. They concluded, “in line with the magic spell hypothesis, we found that people tasked with drafting laws wrote in a more convoluted manner than when tasked with drafting various control texts of plausibly equivalent conceptual complexity.”
Seven Practical Ways to Avoid Legalese
I believe that most lawyers understand the need to boil down the communication and to be concrete for the audience, whether that is a juror, a judge, a mediator, or an arbitrator. Keeping some habits front-of-mind for oral presentations will make that easier.
- Use Shorter Sentences. Instead of the kinds of clause-heavy sentences that might find their way into your legal writing, unpack those sentences into several shorter sentences for oral presentation. If you find yourself wanting to add a dependent clause or a modifying phrase, you are nearly always better off adding a sentence.
- Use Active Voice Where Possible. It is almost never better to passively focus on what was done rather than on who did it. An active construction — subject, verb, object — will generally be the cleanest, most direct, and shortest way to say it.
- With Uncommon Words and Phrases, Ask ‘Do I Need This?’ Justify any jargon based on necessity, not convenience (for yourself). Keep your focus on communicating better rather than on sounding authoritative or “legal.”
- Be Concrete Rather than Abstract. The closer you can be to the bottom rung of the “ladder of abstraction,” the more concrete, vivid, and factual you will be. Don’t rely on what is theoretical or hypothetical when you can talk about the facts instead.
- Address Your Factfinder Directly. You aren’t talking to a generic or figurative audience, you are talking with people. Make that clear in your expressions: “At this point, you might be thinking…” is better than “In response to that information, a person could wonder…”
- Omit ‘Padding’ Words. Because shorter expressions are going to be processed more immediately, it helps to pare away any words that are not adding to the communication. It is not “a three-year period of time,” it is “three years.”
- Embrace the Storytelling mode. Ultimately, it comes down to keeping your audience and your purpose in mind, and in keeping a clear mindset. You are not declaring your legal argument, instead you are telling a story about a legal conflict. The more you can make that story concrete, vivid, clear, and effectively paced, the more engaged your audience will be.
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Other Posts on Legal Language:
- Limit the Legalese, and ‘Legalese’ Isn’t Just Jargon
- Make Your Language More Personal and Less ‘Polite’
- Check Your Language Level
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Martínez, E., Mollica, F., & Gibson, E. (2024). Even laypeople use legalese. Proceedings of the National Academy of Sciences, 121(35), e2405564121.