Res Ipsa Loquitur . . . or does it?

by | Mar 4, 2019 | Business

What if I told you that this: In witness whereof the parties hereunto have set their hands to these presents as a deed on the day month and year hereinbefore mentioned. (24 words)

and this:

Signed on (DATE) …………. (2 words plus the date)

mean exactly the same thing? Which makes more sense to you? If I were asked to sign a contract, and had to choose between the two sentences above, I would choose the second one. And, I’m a lawyer.

Res Ipsa Loquitur is Latin for “the thing speaks for itself.” It’s a legal principle that refers to situations where it is obvious (and therefore, assumed) an injury was caused by negligence and so there is no further need to prove there has been negligence. The thing speaks for itself.

It may seem a stretch to say that anything in the law “speaks for itself” (does anyone but a tax lawyer understand the Canada Income Tax Act?). Legal documents can be so difficult to read and understand, they seem to be written in a foreign language. This foreign language even has a name: Legalese.

Lawyers are trained to speak and write in Legalese. We are taught that specific “magic words” will achieve a certain result because a prior case was either won because these “magic words” were used, or lost because they were not.

For my first article, I wanted to tackle the subject of Legalese and make a confession. I, too, from time to time, have been guilty of using Legalese, that legal jargon, that “Black Speech” spoken only in the realm of legal circles. I drew comfort from “magic words”, knowing the exact result I could achieve by using them. If I came across “magic words” I didn’t understand, I simply reached for my trusty Black’s Law Dictionary (half of which is riddled with Latin terms) for help. However, not long ago, I was reviewing a 50-page legal document, written mostly in Legalese, and came across “magic words” I didn’t understand. As I reached for my handy Black’s Law Dictionary, I realized that without it, I couldn’t, on my own, understand what these two simple words staring up at me meant and what impact they had on the rest of the legal document. That made me feel helpless and rather frustrated. If as a lawyer I felt that way, how would a non-lawyer feel? Would they be able to read, much less understand, the document, which easily contained at least 100 more “magic words”?

There is an alternative to Legalese, and that is plain language. Plain language does not mean “dumbing it down”. It means communicating information in a clear, concise way that is easily understood. Legal documents do not need to be written in Legalese. There. I said it. A person should not need a lawyer to translate words in a legal document. The better use of a lawyer is to help you understand the risks contained in that legal document and how to manage the. Making the law accessible to everyone means writing legal documents, like contracts, mortgages, insurance policies and legislation, in language that the reader can understand. The law is meaningless if no one, but lawyers, understands it.

Using plain language is not as easy as one would expect. In 1992, Ian Waddell, the NDP MP for Port Moody – Coquitlam, introduced a Private Members Bill to create a special committee that would rewrite new laws to be understandable by all people. His bill did not pass. Ironically, it was criticized for being written in the same Legalese he was trying to get rid of. If you google “plain language” you will see lots of organizations promising to communicate more clearly and directly with its audience. While there has been some movement, there’s still a way to go. There really is no excuse for Legalese to continue. Rather, writers of legal documents should be striving towards “legal literacy”: making sure people understand words used in the legal context so they know what is expected of them.
I am now a plain language convert. I take it as a challenge to take a rambling legal document and turn it into something that is easily read and understood. In future articles, and in my legal practice, I promise to use plain language; if I don’t, please call me on it.

In closing, I leave you with a humorous contest poking fun at Legalese (thanks to the Plain English Campaign):

“The UK Plain English Campaign’s annual Golden Bull awards are given for the year’s ‘best’ examples of unnecessarily complex English. The Bishop of Blackburn was nominated for a Golden Bull in 2011 for this example of legalese in a letter sent to parishioners. See if you can understand what the bishop wrote. It concerns a parish priest who had been acting as a temporary vicar during an initial trial period before a final decision was taken as to how to fill the post.

AND WHEREAS We have consented to the said period being so brought to an end and to the exercise of such right of presentation NOW WE HEREBY DECLARE that the said period shall come to an end on the date hereof and that the said vacancy in the said Benefice of Ansdell and Fairhaven Saint Paul in Our said Diocese of Blackburn may thereupon be filled.”

The thing speaks for itself . . . or does it?

This this information is not intended to be a substitute for legal advice. Individuals should consult with their personal legal professional regarding the information provided herein.

<a href="" target="_self">Denese Espeut-Post</a>

Denese Espeut-Post

Denese Espeut-Post is a sole practitioner operating the boutique firm, Avery Law Office, with offices in Summerland and Princeton from which the Avery Law team strives to provide legal and professional services with a personal touch in the areas of wills and estates and real estate. Denese has been the gracious recipient of awards for both her quality of service and legal knowledge. She is proud to serve not only her clients, but her community, and is dedicated helping those in need of her services navigate difficult legal situations.