True Fluency in Legal English - Are you there yet?

Although my message here is really addressed to non-native English-speaking lawyers, others might also find some nuggets of wisdom. Or at least be provoked into a wry smile.

I am a native English-speaker. I was a partner in a London law firm for a long time. I don’t practise law now, but I teach and coach lawyers and executives. My special joy is to teach lawyers how to write and speak good legal English. Plain English, that is. And I teach them critical-thinking skills, presentation skills public speaking and advocacy.

Like it or not, English is the international language. The better anyone at English is, the better their career prospects. There is, however, something especially difficult about legal English. Good legal English is hard enough for native English speakers – for non-native English speakers, mediocre skills can be career-breaking – especially when it comes to the written word.

I have been here in Hong Kong for 10 years.  I come across many lawyers who learnt their English at the local schools and who find, when they get to university, that legal English is a very different and special kind of English. The lectures are delivered in English – often by native English speakers. Students are confronted by weighty tomes full of impenetrable language.  It’s not only a foreign language - in that it’s not their native language - but it is well, just like a foreign language - albeit one written using English words. 

I know how they feel.

When I left my grammar school in the summer holiday prior to starting my law studies at university, I borrowed one of my brother’s law books. It was Cheshire and Fifoot, Law of Contract. It was part of the pre-University reading list.

I don’t think I got past the first chapter and was eagerly casting around to find another subject for study. But my ego (and my dad) got the better of me – I had to see it as a challenge and my dad was convinced that I always had it in me so I should face the challenge. I am forever grateful to him.

Although I always scored well in my English exams, what confronted me in that first book seemed to be gobbledygook. Nearly every sentence was so tortuous and tedious; impenetrable; it was almost impossible to unravel what the author was trying to say.

Of course, legal concepts are complicated and, although, these days, some lawyers strive to use plain English (which doesn’t mean that it has to be ‘simple English’), many still speak and write as if they did their training in Dickensian London.

Students often confront me with dense text through which I have to trudge, as if through a thick mud of words that are far too big and complicated. I see 150-word sentences riddled with ‘hereinbefore’ and ‘whereafter’, and the almost universal misuse of the word ‘shall’, just to get to what the author is talking about. 

As I have said in these pages before, using all that legal mumbo-jumbo is not big and it certainly isn’t clever. You might want to look very lawyerly in your three-piece suit, your double cuffs, slicked back hair and polished shoes (just to make sure people realise you are a lawyer) but you don’t need to make it worse by trying to impress people with language they simply don’t understand. They will just think you are a complete [insert your word of choice].

Lawyers need to rewire their brains and concentrate on the client – on translating complex issues into language which is easy for the client to understand.

Denning Rules, OK?

Read some of Lord Denning’s judgements.

Goodness me – he was someone who wrote, not just normally, but poetically. This was beautiful storytelling. Take this example:

‘In June 1970, a big earth-moving machine got stuck in the mud. It sank so far as to be out of sight. It cost much money to get it out. Who is to pay the cost?’

My message to any lawyer: read Denning’s judgements. Here was a brilliant lawyer explaining the most complex legal issues in the plainest language and with the shortest sentences.

Another Denning example:

 ‘What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least.’

‘If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.’

And now, the very essence of Lord Denning’s approach to the law:

‘Unlike my brother judge here, who is concerned with law, I am concerned with justice.”

Lord Denning would look at a case, work out how justice would be served and then find a way round any obstacle – be it statute or precedent, that might stand in his way. That attracted much criticism but certainly did not detract from his skill in explaining complex issues in simple terms.

Even these days, even though so many universities, so many law firms stress the need to use plain English it still just ain’t happening is much as it should. 

This is especially the case when it comes to the use of precedents. I’m sure I’ve said this somewhere else here before, but precedents are where non-native English speakers sometimes find a great deal of difficulty.

Certainly, with the international law firms, their precedents are probably drafted by native English- speakers. That being so, those who are not truly fluent in legal English are terrified to change a precedent. That is, of course, if they actually understand what the precedent is saying.

An example I have used before, what does the word ‘presently’ mean? What does it mean in this phrase: ‘The amount presently due is $1000.’ And now in this: ‘The professor is not here yet – she will be along presently. ‘ 

In one case, ‘presently’ means ‘now’. In the other it means, ‘soon’. Yet the word is frequently used in articles of association – especially when looking at clauses denying shareholders the right to have a share transfer registered whilst any sums on the share are ‘presently due’.

When I redrafted in international law firm’s local commercial precedent into plain English, I asked one of the partners what a particular clause meant. His answer: ‘I don’t know, I didn’t draft it’.

Yes, I understand that precedents have to be drawn with the greatest care and that we don’t want to leave room for any misunderstanding. We don’t want to leave anything out that might be relevant. We don’t want to get sued because of what we have written – or not written.

When faced with a precedent many lawyers – even native English-speaking lawyers, won’t dare touch it. They might realise that it looks to have been written by a long-dead lawyer using a quill pen, but they don’t want to change it – in case they make a mistake.

Use plain English. Use short sentences. Make it all readable, understandable

If you are faced with something that a client would find really hard to understand, take the time to rewrite it. Imagine another non-native English speaker who is not legally trained but who is nonetheless reasonably smart.

Use plain English. Use short sentences. Make it all readable, understandable.

That’s how to impress a client.

But first, ask yourself, ‘What is this author trying to say?’

I am often asked by a non-native English-speaking lawyer, ‘What does this mean’? The writing might have to be dissected and the very essence extracted, but that is not always an easy process. Take this as an example:

‘There has been much excitement generated by the possibility that, in order to resolve the Miller case, the Supreme Court might have to make a reference to the Court of Justice of the EU (“ECJ”).

The excitement is partly generated by the fact that the question that it is thought might have to be referred – the question of whether a notification under Article 50 TEU can be withdrawn unilaterally by the Member State concerned – is one with major political significance, since a positive answer would mean that the United Kingdom retained the option, at any time until the day it actually left the EU, of changing its mind and remaining a member on current terms. [80 words] But it is also due to the fact that a reference to the ECJ would take time (thereby having significant implications for the Government’s proposed notification timetable): and the idea that the ECJ, a court never popular with politicians hostile to the EU, would seem to have a say in the United Kingdom’s decision to make an Article 50 notification would be, to say the least, controversial in certain quarters.’ [Total: 185 words]

Your challenge: rewrite this in under 60 words.

And if you are one of those non-native native English-speaking lawyers who is concerned about their level of English, get learning. There is lots of stuff on the Internet. There are whole books on the subject. There are people who can teach you.

If this also is a problem for others in your firm, ask your Director of Training and Development if they can arrange some in-house training.

The reality is that, if you practise on the international stage, your career will only reach the level your legal-English language skills allow. 

To qualify as a lawyer, you have to be pretty smart so you know you can do it. Perhaps it’s now time to strive for the next level – true legal-English fluency.