Bad terminoloy is the enemy of good thinking

Bad terminology is the enemy of good thinking, according to Warren Buffett, the Sage of Omaha. What Buffett means is that poorly conceived terminology hinders people in making sensible decisions and understanding things.

A great deal of terminology has changed in family law over during the 26 years that I have practised as a family solicitor, and not always for the better. There has been a move towards using plain English, rather than legalese, and that is probably a good thing. However, I have noticed a depressing trend towards verbosity, for example, an organisation that simply used to be called the court welfare service is now known as the Children and Family Court Advisory and Support Service (CAFCASS), and what used to just be known in children proceedings as a directions appointment is now known as a First Hearing Dispute Resolution Appointment (FHDRA). Sadly, the latter is particularly poorly named; cases are very rarely resolved at them. It is is one of my least favourites.

I take the view that no acronym should contain more than 3 letters, unless it can be pronounced easily as a word e.g. NATO or POTUS. Many solicitors call these hearings “furderers” or “Federers”, which I will freely admit to loathing. Creating a new word for something cool like a jeep (a GP or general purpose vehicle), a Humvee (HMMWV or High Mobility Multiple Wheeled Vehicle) or a Huey (an HU1 Iroquois helicopter) may make life simpler on the battlefield, but it lacks clarity for non-lawyers.

However, what really bugs me is how often people get terminology wrong. Non-lawyers of course have a reasonable excuse for why they get things wrong. Every family lawyer will be used to hearing their clients talk about “access” or “custody” in relation to their children. In fact, access orders and custody orders have not existed in England or Wales since the introduction of the Children Act 1989 when they were replaced by contact orders and residence orders (themselves replaced a few years ago by child arrangements orders).

However, when one lawyer hears another using those outdated expressions, they immediately assume that the other lawyer simply does not know what he or she is talking about. I once acted in a case where the solicitor acting for the mother had applied for a “Residency Order”, something which I have only ever heard referred to on EastEnders. The solicitors in that case were based in the North of England and did not attend the hearing in Essex, instead instructing a local solicitor to act as their agent. At one point, when the court was considering whether or not the application was misconceived, the judge growled “There’s a tone about them, isn’t there?” It was quite clear to the judge that the mother’s solicitors had not got a clue.

Poor use of terminology grates, although I will admit that I am being a little curmudgeonly and pedantic. As a lawyer, I am professionally trained to split hairs so it is difficult to avoid this. When another solicitor talks about “filing” an application at the court, it is not right and sounds horribly American. Applications are “lodged” or “issued” with the court, not filed. Filing is what happens to witness statements so that the court has a copy of it (not that there is any likelihood that the judge will look at it until there is a hearing and probably not even then, as the court will probably prefer to look at the court bundle filed shortly before the hearing by the applicant’s solicitor). I usually talk about issuing an application at the court, although that probably is not right either, as it is the court that issues applications once they have been lodged by the solicitor.

More and more applications at court now have to be commenced online, and the online portal for family cases talks about them being “submitted”, not lodged. “Lodged” is probably rather old-fashioned and “submitted” is probably more understandable by lay people in this day and age.

No-fault divorce law is due to be produced on 6 April 2022, at which time much of the current terminology will change. HMCTS (Her Majesty’s Courts and Tribunals Service - a bit of a mouthful and a shocking breach of Armstrong’s law of short acronyms) appears to have assumed that the law is going to change for quite some time because for the last few years many of the divorce forms have included some of the new terminology, long before the Divorce Dissolution and Separation Act 2020 was passed by Parliament; in fact a long time before the government decided to change the law.

At the moment, the party who starts the divorce is called the “petitioner”. This is because he or she is the party who starts the proceedings with a petition for divorce. When the law changes, divorce petitions will become a thing of the past and instead an applicant will apply for a divorce order. Outdated phrases such as decree nisi and decree absolute will be replaced by conditional divorce orders and final divorce orders. The online divorce portal already uses a document which calls itself “an application for a divorce (Petition) and it is notable that many divorce petitions now contain standard wording generated by the portal, which refers to an applicant and the parts drafted by the petitioner’s solicitor refer to a petitioner. This may look a little odd, but it is legally inaccurate to currently refer to the person seeking a divorce as an applicant.

I am a great believer in adopting new terminology when it is introduced, even if I do not particularly like the new word. I therefore promise that on 6 April, I will immediately stop referring to divorce petitions, Decrees Nisi and Absolute, and will instead only refer to applications for divorce orders, conditional and final divorce orders.

However, one area where I happily get rid of the terminology altogether is use of the words “applicant” and “respondent”. It is very easy to muddle the two up and I have seen orders which talk about the applicant making payment to the respondent, when in actual fact it is supposed to be the other way around. While it is necessary in a form to make it clear who is the applicant and who is the respondent, it would be simpler and less risky most of the time to simply refer to the parties by their actual names.

At least legal Latin is now virtually unheard of in the Family Court. I recall in the 1990’s that a fellow solicitor was informed by a judge “I think this application is sine die, don’t you?”

“Er, I think that depends, sir” replied the solicitor.

The judge’s eyebrows rose. “Does it? What does it depend on?”

“On whatever sine die means, sir”, replied the solicitor.

2 February 2021