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Legal terms can confound lawyers and laymen alike subpoena duces tecum, grand juries, and petit larceny. Even simple terms like assault and negligence have spawned a host of variations in the legal lexicon. To help sort this out comes The Party of the First Part: The Curious World of Legalese, a book that is a mix of scholarship, stand-up comedy, and argument for plain English. The author is Adam Freedman, a former litigator who now translates corporate policies and procedures into plain English. He surveys legal terms relating to torts, civil litigation, criminal law, contracts, finance, sexual relations, and more, and explains the terminology and law behind the legalese. If you’re looking for lively descriptions of the unborn widow rule and the Deceased Brother’s Widow’s Marriage Act, this is the place. Freedman notes that legal English, like English itself, stems from a mixture of languages including Anglo-Saxon, Norman French, and Church Latin. Following William the Conquerer’s invasion in 1066, French influences seeped into Old English. The new rulers required legal business to be conducted in Latin, which in part was justified by England’s great variations in regional speech. The influences of the Romance languages remain in terms such as res ipsa loquitur or “court-martial,” where the adjective follows rather than precedes the noun. The eventual use of both English and French led to phrases using both words: “breaking and entering,” “fit and proper,” “free and clear,” and “will and testament.” Freedman is well-versed in linguistic and legal history and offers examples of how legal terms influence speech, such as the expression “highway robbery,” which originally was a technical legal term for robbery committed on the King’s highway. He calls for an end to indecipherable legalese, which is making the law “less and less accessible to each new generation.” He points to consumer contracts full of boilerplate (although these tend to be dense due to convoluted sentences rather than archaic terminology). Legalese is also to blame when jurors confuse “proximate cause” with “approximate cause” and confuse “preponderance of the evidence” with “pondering the evidence.” Freedman prefers the simple clarity of plain English to the wordiness of what he calls “precision” language, which he says pursues precision through elaboration but leads to run-on legalese. It’s hard to argue with that, but, as he admits, plain words can lend themselves to multiple meanings, and he even calls terms such as “reasonable” and “substantial” weasel words due to their elusiveness. The ambiguity can be comic, as in the everyday word “money” being interpreted so broadly as to include bottles of beer. This occurred in a Texas case where a criminal statute forbade the playing of pool if “money” were bet on the game. But how to achieve greater clarity is, well, unclear. Freedman objects to the use of Latin and suggests substituting “Great Writ” for habeas corpus, but that’s hardly an improvement. Freedman does seek to entertain, and he quotes approvingly of more lively legal writing such as an opinion in which Judge Bruce Selya mocked lawyers’ tendency to find citations for every proposition: “But appearances can be deceiving. See Aesop, The Wolf in Sheep’s Clothing (circa 550 B.C.)” Freedman also enjoys mocking legal language with quips such as saying that any “language in which libel can mean either a disparaging remark or a lawsuit against a ship is obviously a disaster waiting to happen.” The pursuit of laughs at times interferes with his argument. For example, he declares “almost willfully perverse” the standard contract clause that states the “masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses.” Although that may seem absurd, it actually helps reduce the confusion that a slip-up in drafting might otherwise cause. He also makes slip-ups. For example, he quotes Justice Oliver Wendell Holmes’ complaint of long briefs: “I abhor, loathe and despise these long discourses,” which Freedman calls “a fine example of three adjectives doing the job of one.” Three verbs, actually. Freedman’s support for plain English is a call for clarity, but he also concedes that clarity and coherence exist in the eyes of the beholder. At least we can laugh.
Gunnar Birgisson is counsel in the D.C. office of Bracewell & Giuliani.

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