Clarence Darrow once said that “the trouble with law is lawyers”. In defence of lawyers it could be said that ultimately the trouble with law is that the law is uncertain and to most people largely unintelligible. To the extent though that lawyers husband that uncertainty and opaqueness, they are undoubtedly the enemies of access to justice and very much part of the trouble with law.
The self-evident purpose of language is to communicate and one would then expect lawyers to adopt language most likely to convey the intended message. Instead we still find lawyers referring to last month, this month and next month as ultimo, instantand proximo, a code that is gobbledygook to normal folk.
And it is not unusual to find a letter written by a litigation lawyer that ends with the words, all our client’s rights are reserved or the more emphatic version, all our client’s rights are reserved in fact, in law and in toto.
It is an interesting exercise to challenge that lawyer on the use of the phrase as a catch-all rather than a reservation carefully and appropriately applied. Most will tell you that they are reserving their client’s rights. But what need is there to reserve those rights if they are not in fact abandoned? Perhaps the inclusion of the catch-all phrase is a useful protection for lawyers who are not sure if they are abandoning rights and much like throwing salt over their left shoulder after a spill, find comfort in superstition rather than taking the time to make sure.
Lawyers also find comfort in standard openings to letters, much like a batsman’s trigger movement before playing a cricket stroke. Many lawyers’ letters will refer the reader to the abovementioned matter, the draftsperson implicitly assuming the reader incapable of grasping that a letter announcing a subject headed in bold capitals at the top of the page almost certainly deals with that subject.
As in every trade, there is a jargon and initiates are anxious to learn that jargon and to fit in. Law is no different. Candidate attorneys strive from their first day to become proficient in legal speak. Law is different though in that the extravagant jargon favoured by lawyers is acknowledged as a barrier preventing ordinary people from enjoying the fullness of the rights to which they are entitled and in most countries around the world for which they or their ancestors fought pitched battles. It is different also in that to the outsider the jargon makes the simple incoherent and in the context of law that is a pox on the lives of ordinary people.
But plain language, simple sentences and clear communication take a lot more effort than the use of trigger movements, jargon and superstitious add-ons. Simple and brief never will be the default. So, if lawyers naturally default to waffle and jargon, what chance do clarity and plain language have? Market forces ultimately will decide. If the market wants to eat burgers, burgers it shall have. However, there will always be a portion of the market, significant enough to ensure the relevance of fine dining and Michelin stars. Law will be the same. For as long as there is a significant portion of the market that demands simple brevity and precision of its lawyers, there will be lawyers prepared to work that much harder, to be that much better to satisfy that discerning slice of the market.
The trouble with law may in part be lawyers but while clients are paying and market forces operate, clients will get what they demand.
So what is your order, O discerning client? Chicken burger or Coq au vin?