Legalese — Why Aren’t Legalese and English the Same?

I call this column “Legalese” because to me, “Legalese” is a language that looks suspiciously like English but isn’t.  It uses many of the same words, and because of that, many English speakers think that if they speak English they speak Legalese.  This isn’t necessarily true.

It isn’t because words mean something different in Legalese.  It’s because words are infinitely more specific in Legalese.  What might seem like nit-picky semantics or splitting hairs in normal, every day conversation means a whole lot in a legal context.

For example, take the words “guardian” and “custodian”.  You might use those two words interchangeably.  In casual conversation, if I were talking about my own children in relation to school, I might say that I could get copies of their report cards because I am their “legal guardian” or I am their “legal custodian” and no matter how I said it, you’d nod your head and know what I’m talking about.  In the legal world, however, those are different things.  You’d get guardianship through probate court and custody through superior court.  As the legal and biological parent of my children, who were naturally born of my womb within the bounds of my marriage to my husband, my husband and I are my children’s custodians, not guardians despite the fact that there is not a court order saying so for either of us. 

Lots of other words are legally charged like that.  A word like “victim” can be controversial inside a criminal courtroom, for example.  A victim is a person who has suffered at the hands of a criminal.  It assumes that there is, in fact, a criminal.  In most criminal trials, there is agreement that the victim has suffered at someone’s hands, the question is whose hands – whodunit, so to speak.  But there are times when there is an argument as to whether or not there Is a victim.  Cases in which the defense is self-defense.  If, for example, you are charged with aggravated battery for breaking someone’s nose, but your defense is that you only punched the person in the nose because they were coming at you with a baseball bat saying they were going to bash your head in, are they the victim?  If your playground bully came at you for the tenth time that day and you finally snapped and threw a punch, are they the victim?  If you are arguing about whether or not there was consent, one of the things a jury has to determine is whether or not a crime took place.  No crime, no victim.  Conversely, the same thing would apply for the word “robber” or “murderer”.

What that means is that if you call someone a victim, you have made a decision for the jury.  You are declaring that a crime has taken place.  You are declaring who the aggressor is and who the weaker party is.  The lawyers or litigants can’t do that – it isn’t their job in a courtroom to make those decisions in a lot of cases.  It’s the job of the jury. 

This, of course, is why people dislike lawyers in social settings.  We are so conditioned to being precise in our language in that way, that we often ask for clarification when a normal person would know exactly what is being talked about.  We can be super-annoying that way.  But its also why you want us to read your contracts for you.  You might think “$5,000.00 upon completion” is sufficient, but a lawyer is going to spend a whole hour debating what “completion” means.  Does it mean the minute the last nail is driven in?  Does it mean after the inspection is done and all the follow-up repairs are made?  Is there any grace period afterwards?  Does it mean after the contractor gets paid?  After the check cashes?  What if it all falls apart in 24 hours?  Does that include clean-up afterwards?  So many questions.

This is why contracts and everything lawyers write and say and do is so lengthy.  Everything comes with a definition so we can all be sure that we’re defining words the same way.  Everything comes with a “but if” clause that covers every imaginable contingency.  Is this necessary?  Well, not always, but sometimes, and often enough.  It’s also why if you’re at a cocktail party and you ask a lawyer a simple yes or no question they will inevitably say, “It depends on whether….”

And why, only to a lawyer, the sentence, “it depends on what the meaning of the word ‘is’ is” makes any kind of sense. 

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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