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31 Prob. & Prop. 55 (2017)
Legal Writing: Legalese, Please

handle is hein.journals/probpro31 and id is 397 raw text is: By Martin A. Schwartz Most real estate lawyers are articulate in oral conversa- tion and able to clearly and succinctly express a particular posi- tion or thought. And some may even be good novelists. But when it comes to drafting legal documents, the rule seems to be legalese, please! Legalese is a com- monly used style of drafting legal documents that consists of torturing the English language for the alleged purpose of clarity and precision but which often results in the opposite. Merriam-Webster's Learner's Dic- tionary defines legalese as follows: the language used by lawyers that is difficult for most people to under- stand; legal jargon. It is a language Martin A. Schwartz is a partner in Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida. that relies on the use of archaic terms, poor grammar and sentence struc- ture, and needless repetition. One commentator has described it some- what differently: Legalese-lawyers' jargon-is turgid and annoying, adds nothing of substance, gives a false sense of precision, and obscures gaps in analysis. Gerald Lebovits, On Terra Firma with English, Scribes J. of Legal Writing 2014-15, at 123. Fortunately, we seem to have moved away from the identification of the parties to an agreement as the party of the first part and the party of the second part. This cloak of ano- nymity made it virtually impossible to identify which party was respon- sible for which obligations. And it was deservedly parodied in the Marx Brothers movie A Night at the Opera. But most other legalese lives on. Typical legal agreements begin with a preliminary statement referred to as Witnesseth, continue with sev- eral Whereas clauses, and conclude with In Witness Whereof. Affida- vits frequently conclude with the statement: Further Affiant Sayeth Naught. One would be hard pressed to find these archaic terms used in other styles of writing, but they do bear the imprimatur of making a doc- ument look legal to the same extent as in the age of Robin Hood. Out- side of the legal profession, would words like Witnesseth pass a com- puter spell check? Does it add clarity to express some 21st-century concepts using 15th-century language? Adding to the legalness of a document are the inclusion of the h words: herein, hereof, hereto, hereunder, and hereinafter. These words, other than hereinafter, defy precision, because it is never clear PROBATE & PROPERTY NOVEMBER/DECEMBER 2017

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