– It says, “The party of the first part shall be known in this contract…as the party of the first part.” How do you like that? That’s pretty neat, eh?
– No, it’s no good.
– What’s the matter with it?
– I don’t know. Let’s hear it again.
– “The party of the first part shall be known in this contract…as the party of the first part.”
– Sounds a little better this time.
– It grows on you. Would you like to hear it once more?
– Just the first part.
– What? “The party of the first part”?
– No. The first part of “the party of the first part.”
– It says, “The first part of the party of the first part…shall be known in this contract as the first part of the party…”
– Why should we quarrel about this? We’ll take it out.
– Yeah. It’s too long anyhow.
– Now what do we got left?
– I got about a foot and a half.
– A Night at the Opera, screenplay by George S. Kaufman and Morrie Ryskind, from a story by James Kevin McGuinness, with additional dialogue and drafts by Al Boasberg, Buster Keaton, Robert Pirosh, George Seaton and probably the entire Marx mishpocha and anyone else hanging around the set.
A few years ago, while I was still working for lawyers, I entered the sloppy sanctum of my friend, “Judge” Goldfarber, a profoundly intelligent appellate lawyer who’d clerked for two Supreme Court justices. I plunked myself down in a chair and asked him why so many boilerplate legal documents were so miserably incomprehensible.
Here’s the gist of what “Judge” told me: legal documents are a series of accretions, starting with the language within the original U.S. Constitution. So if a discovery demand, for instance, was successful in the late 19th century, it got passed on and up and around law offices through the ensuing centuries until it was as if carved into stone.
Although lawyers of course accommodate legal shifts within the old documents (the “accretion” part), the language remains calcified – partially because most lawyers get nervous about changing something, even an incomprehensible phrase, that’s had centuries of imprimatur. In fact, lawyers call each other and ask, “Hey, do you have a good omnibus motion hanging around?”and then just use that “borrowed” document as a template for their own omnibus motion.
Lawyers are generally not creative, daring people and many are not good writers.
I, as outsider, think there’s an additional reason. Throughout human history, the man who could read and understand words had great power over men who were illiterate. Only someone who understood its language could interpret the bible as, say, the word of god, and use his interpretation to wield power over people who couldn’t read and dispute him.
Those who translated Greek, Aramaic or Latin into the vernacular of their regions – like heroic William Tyndale, a priest who first transcribed the bible into English – were persecuted, even put to death. The church and its loyal educated aristocrats ferociously held close to their chests the exclusive rights to the written word.
So if legal language remains arcane to all but lawyers, lawyers own the Law and control those of us who don’t understand what they’re talking about.
It’s all about the power of the word.
At the time I asked for “Judge’s” dissertation on legal writing, I was myself working on a discovery demand and chomping at the bit to update and clarify the writing. “Judge” pointed out that the discovery document I was using as a fundament was so dated it didn’t even demand documents produced on computers. Geez. I added a demand for e-mail, et cetera, and translated the whole thing into plain English.
I signed our Proprietary Lease in 1988, before I worked for and understood lawyers. So it was understandable – albeit reprehensibly dumb – that I failed to comprehend what little of it I’d skimmed through.
That’s my excuse, anyway.