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Legalese v. Plain English


Question: What do you get when you cross the Godfather with a lawyer?
Answer: An offer you can't understand.

The nature of our legal system, which is often referred to as a "common law" system, is that it depends heavily on precedent. That means that the outcome in a current case is determined by reference to the outcome in prior cases. Words, phrases, and terms are given meanings that are developed in lines of cases. Thus, so called "legalese," while usually used as a denigrating label, is in fact the technical language of the law.

Do you understand the meaning of these phrases: "Biophilic Design", "microsphere/hydrogel combination system", and "pool boiling curves"? If you don't you are not alone. They come from the technical language of architecture, pharmacy, and nuclear engineering, respectively. These specialized professions employ technical language. As does the legal profession.

There is a movement for Plain Language in legal writing that is very important. Its goal is to eliminate unnecessarily complex language in law, government and business. The improvement of writing clarity should be supported. However, it cannot be expected that a lay person will be able to read and converse freely about the technical aspects of any profession. A physics paper submitted for publication to an academic journal is not readily accessible to the lay reader.

In the law, some writing should be directed at the reader's lay level. A good example is warning labels. It is imperative that a warning label to be affixed to a dangerous machine be clear and easily understood. What is not so clear is that legal documents intended to govern complex relationships and transactions need be or can be written with the same reader in mind. For attorneys the use of traditional legal writing is more efficient because it is most commonly used; therefore, most commonly understood.

Some accuse lawyers of being obscure writers on purposes. Perhaps some lawyers are like that, but many accusations against lawyers for writing "legalese" are unfounded.

If you read a surgeon's textbook giving precise instructions on how to perform a cholecystectomy and you did not understand it, would you think it was a bad textbook? Or would you think that you had a bad surgeon? No, of course not.

Similarly, if your lawyer drafts a will or trust for you and you do not understand all of the provisions, does that mean it's a bad document, or that your lawyer is being an obscurantist? No, of course not.

"Boilerplate" provisions in a contract, will, or other legal documents are sections of routine, standard language. The term comes from an old method of printing. In the late 1800's and early 1900's, "boilerplate" or ready to print material was supplied to newspapers. Advertisements or syndicated columns were supplied to newspapers in ready-to-use form as heavy iron, prefabricated printing plates that were not (and, indeed, could not) be modified before printing. These never-changed plates came to be known in the late 19th century as "boilerplates" from their resemblance to the plates used to construct boilers.

The term "boilerplate" was later adopted by lawyers to describe those parts of a legal document that are considered "standard language," although any good lawyer will tell you to always read the "boilerplate" in any document you plan to sign. Today, "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed.

In a will or trust, sections of boilerplate are often maligned as "legalese." In fact, the choice of boilerplate is crucial. Let me give you a few examples.

Wills should contain a tax clause. A tax clause is a provision that says where the executor should get the money to pay federal and state death taxes. A common boilerplate provision could provide that all taxes are to be paid from the residue of the probate estate. Maybe your will says that.

Boilerplate is often used in a will or trust to provide definitions. For example, the will may refer to children, grandchildren, descendants or issue. Who is included? Is a stepchild included in the class? Is an adopted child included in the class? Are children born of unmarried parents included? If there is a definition in the boilerplate, it may exclude stepchildren as beneficiaries. Is this intended? Perhaps. Then again, perhaps not. This is a case where the definition in the boilerplate goes to the heart of the matter--who is a beneficiary and who gets a share of the estate.

If you name an individual or a bank or trust company as a trustee, can the beneficiaries ever remove that trustee? Thirty years later when the trustee's fees are high, investment performance is poor, and there is inadequate customer service, can the trust be moved? It depends on what it says in the boilerplate.

All boilerplate is not equal. The choice of the boilerplate that is appropriate to the circumstances and is in accordance with the intentions of the parties is very important. There is no standard, across-the-board language for anything. It is all written by someone, the words have meaning, and they are binding.

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Spencer Law Firm LLC
320 Race Ave
Lancaster, PA 17603

Toll Free: 866-639-5451
Phone: 717-207-7935
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