I’ve been thinking about this a lot lately. Last week I went to record an episode of Word of Mouth with Michael Rosen all about legal language (airing later today – Tues 22nd– at 4pm on Radio 4), so I want to set down some of the thoughts I’ve had along the way.
As it happened, Paul Magrath was in the middle of writing his review of the latest edition of Clarity for Lawyers (Adler and Perry) (sounds excellent - please buy me one for my birthday) - and when he heard about the programme helpfully sent me some extracts from it, along with an excellent speech from Lady Justice Rafferty about the same topic. Whilst I highly recommend both, I feel I have to observe that for a speech about clarity of language I still had to look up one word – 'quotidian', and another ‘plasticity’ is one I like but which I almost always have to explain).
Actually I don’t think legalese is exclusive to lawyers as such, in that all professions, industries and many other specialist groupings have their own codes, languages and acronyms which can exclude outsiders intentionally or otherwise. All humans use language in such ways for convenience or speed, but also sometimes to create a sense of belonging to a community by excluding others (think pig latin). We speak in special ways - are you like us?
I think that the reasons we lawyers tend towards using five words when one will do, or prefer to use an unusual or complicated word instead of a simple one are multi-layered. And that some of those reasons are better justification than others for – sometimes – using hard words in what we do.
Personally, I was drawn to the law by a passion for advocacy. I love to use words, to articulate things in a way that flows and is compelling, and is satisfyingly structured and coherent. There is a beauty in a well formed written skeleton argument (never more perfect than before it is torn to pieces by the judge or opposing counsel), and there is joy in delivering arguments through oral advocacy and noticing that your audience of one, the judge, is listening and furiously noting what you say (although sometimes they are furiously noting what you say so that they can better articulate with force that you are wrong and your arguments crap). More so when you know that you are giving form to what your client would struggle to articulate or to get heard.
It is so tempting to dust off a rarely used or unusual gem of a word and to drop it in to a sentence where it can sparkle. But the job of an advocate is really not to dazzle but to explain. Good advocacy is pleasingly coherent - it should be a revelation that makes everything make sense - it should not be boring or monotonous but it should also never be blingy. There is nothing wrong in using a technical word if it can avoid a tedious explanation but so often a clever or 'special' word or phrase (including latin) is not actually any quicker or less accurate than a plain English alternative.
Anyway, before heading to Old Broadcasting House I did a spot of social media ‘research’ – asking people who had been through family courts what use of language they found surprising or confusing. Predictably enough some answered the question they wished I’d asked rather than the one I actually did ask, and took my tweet as a springboard to tell me all about the things that were wrong with family courts and lawyers – but many responded with words and phrases that had perplexed or surprised them – some I had successfully predicted would be on the list and quite a few I hadn’t. Thanks to all of you.
Here is a little run through of some (not all) of the responses I got (with a few of my own for good measure). One or two were covered in the course for the recording (though I don’t know if they will end up on the cutting room floor), but here I can cover more.
The first batch are about words for lawyers. This is definitely a source of confusion and the most popular searches on this blog are always for 'what's the difference between a barrister and a solicitor?' or variations on that theme. Here is the blog post answering that question by the way.
Barristers and solicitors are both types of lawyer but a lawyer can't be both, they are either one or the other. Barristers are specialist advocates, but ini fact both types of lawyer can be an advocate (there are also legal executives but I’m trying to keep it simple). See my super duper venn diagram (No, I'm not giving up the day job to be a maths teacher don't worry).
Counsel is another name for a barrister. When the judge asks for ‘counsel only’ it means she wants to see only the lawyers without their clients. When a solicitor briefs counsel they are sending the case to a barrister so they can deal with a hearing or advise on the case.
Queen’s Counsel (QC) is a senior barrister who has been given the rank of ‘QC’ as a mark of excellence. Also called a silk (something to do with the special garments worn by QC’s).
Any barrister who isn’t a QC is a ‘junior barrister’ no matter how senior they are. Barristers who are experienced but not senior enough to be a QC they are called a ‘senior junior’. Yes, daft isn't it?
Chambers – what the rest of the world call offices. Mainly different because barristers don’t (generally) work in a ‘firm’ or company, but are independent sole traders who club together to pay for a room in chambers and share clerks (employed staff who receive enquiries, get in work and allocate it).
Findings – when a judge has decided something has been proved after a trial.
Held – I was always told that a judge finds facts and holds as to the law. So, on an appeal the court ‘held that…’ the law is x. But frankly, now I’ve typed that I’m not sure and I want to go and look it up!
Skeleton – a written legal argument in outline form.
Submissions – the lawyers speechy bit at the end of the case (sometimes done in writing)
Issue – a phrase used by lawyers to mean the things that are in dispute – but only the ones that actually need to be decided for the judge to make a decision. Cue affronted client when told that something that is very important to them is ‘not an issue’ and hurried explanation that what is important to the client is not always relevant for the judge…
ex parte – latin. These days [in family cases]* it should be replaced with the phrase ‘without notice’, but often isn’t. It means 'in the absence of a party' and applies [in family cases]* mainly when one party goes to court to get a domestic violence injunction in place before the other party is told (because if warned in advance they might do something daft). Ex parte hearings should be followed swiftly by an 'inter partes' (‘on notice’ or between parties) hearing so that the person who was not present the first time can have their say. [To be strictly accurate an 'ex parte' hearing also includes a hearing that the other party is aware of but excluded from, for example in a national security context, but this is a real rarity in family cases]*
*[clarification in square brackets arise from a helpful observation by @leoniehirst - thanks].
without prejudice – relates to private correspondence and negotiation that the judge should not be told about until after he has decided the case. Applies to what is said in mediation, not that you’d notice given the regularity with which people submit mediation material.
prima facie – more horrid latin. Means 'on the face of it'. Someone who has a ‘prima facie case’ is someone who has presented enough evidence for it to be looked at, but it doesn’t mean the case will be made out if its poked and prodded and turned around and looked at from behind.
Housekeeping – stupid, trivializing phrase that I am trying to unlearn for administrative stuff that needs to be sorted out at the start of a hearing. which order are the witnesses going in, where is the witness bundle
Part-heard – when a hearing breaks off to a later date half way through the evidence. When the case is part-heard ll the same advocates and judge have to continue the case until the evidence is finished and the judgment given which means lots of diary juggling.
My learned friend – what barristers call one another in court when they have forgotten the other one’s name.
My friend – what barristers call solicitors when they are in pompous git mode (making the point that the solicitor isn't a barrister).
Disguised compliance – as someone said recently a complicated word social workers use when they think parents are lying but can’t prove it. The name makes zero sense but I think is meant to mean when parents disguise the fact they disagree there is anything wrong with their parenting by superficially doing what they are asked to in order to get social workers off their back. Putting on a show or game playing would work just as well.
More generally, acronyms and using the section numbers from a piece of legislation as a shorthand to identify a thing in that section are a general bugbear…. There are so many I can’t even begin to decode them… EPO, ICO, s20, s7, s37, s47, FHDRA, DRA, IRH, PTR, GRH…
Threshold – this is a reference to first stage of the legal test for making a care order in section 31 Children Act 1989. It roughly translates as : is there enough evidence of actual significant harm to open the door to care orders? Has the parenting crossed the line into care order territory (separate question from whether a care order should or will be made)?
Paramountcy principle – means childs welfare trumps everything else
Paginated bundle – a bundle is what lawyers call the file(s) of court papers, put in order and separated into numbered sections so that the judge, lawyers and witnesses can all find the same documents in the same place (in theory).
Others that require a more in depth explanation (a job for another day) include :
- pool of possible perpetrators / in the pool
- standard / burden of proof
- balance of probabilities
- order / direction / recitals
- consent
- mckenzie friend
- Re B-S analysis
Anyway, that's all I have time for now but do listen to the programme this afternoon or on catch up. I may do some more translations in due course.
And thanks again to those who took time to send me their ideas...
POST SCRIPT : One of the things I hope the legal blogging pilot will help with is decoding and translating what happens in court. I'm running a workshop for lawyers, about Journalists and legal bloggers attending family courts next Tuesday. Spaces are still available but booking is essential. More info here.
Such an important topic; and one I still hope to interest TP in….
But as a matter of interest: what are barristers taught to call ‘solicitor advocates’, who can do everything a barrister can do and more (like see witnesses and otherwise prepare cases; and be a client’s advocate (one-stop law shopping)). The whole ‘learned’ thing is – as you suggest, I think – silly. By qualifying we are supposed to have learned a lot; and should keep it up-to-date. I stopped using ‘learned’ and ‘fiend’ in court years ago. I just use an advocate’s name. And I’ve cut it out from ‘learned’ judge (not always by any means, but often, a tautology): didn’t Rafferty LJ, recently, say that was a good idea?
I don’t remember specifically being taught it, you just pick it up. I confess I do used ‘my learned friend’ sometimes – it buys thinking time, you can mentally construct the rest of the sentence whilst saying it. But if I use ‘my learned friend’ I use it for all advocates whether solicitor or barrister. Friend probably does sound odd, and maybe unhelpful in the context of parents who have often been told all the lawyers are too chummy to be trusted to represent your interests against one another.
And yes you are right Lady Justice Rafferty did say we should all stop using ‘learned judge’ fifty times in one document. I’m sure once will do fine.
I look forward to listening and wondering whether I played a small part in this further acceleration of your international celebrity status. I e mailed the programme producer a year or more ago suggesting they tackle the different meanings words have in legal and plain English of common usage.
eg what does probable mean to the passenger on a Clapham omnibus, a court room lawyer and an expert witness? In Scotland ‘proof’ has a range of meanings in and out of court.
What is four times five?
Ask a lawyer. “I’ll do some research and get back to you”.
Ask a stockbroker. “Are you buying or selling?”
Ask an engineer, and this being a very old joke he will take out his slide-rule and say “About nineteen point nine nine.”
Now ask an accountant. “How much do you want it to be?”
They use more jargon than we would dare!
ex tempore – rushed; make it up as you go along.
[…] called, somewhat more forcefully than mine, Why So Lawyers Talk Legalese? and there is a link to it here. She explains some of the code that might puzzle the unwary layman. It’s well worth reading, […]