I hope this was in 1965. Probably not, though.
I suppose there's nothing really wrong with "testatrix." I do find it sexist, though. Why does it matter, your honor, whether the testator was a man or a woman? Why must we distinguish between male and female testators?
Although lawyers write for a living, most legal writing is bad and has been for centuries; most lawyers recognized this failing from what they read, but still fancy themselves to be rather good writers, thank you; likewise, most lawyers strongly prefer other writers' prose to be plainer, simpler, shorter, clearer, but they also strongly resist changing their own style (that's the great disconnect); every possible rationalization for traditional legal style has been discredited; and the costs of our bad writing and funny talk—the time and money wasted and the public disrespect—are incalculable.
[Legal writing is] a stew of all the worst faults of formal and official prose, seasoned with the peculiar expressions and mannerisms that lawyers perpetuate.
—Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain Language
xi (Carolina Academic Press 2006).
Generally, it is a form of the verb be (be, am, is, are, was, were, being, been) and a past participle. If the verb works with have, as in “have _____,” then it is a past participle. For example, in the sentence “I have baked,” the word baked is a past participle. The word written is a past participle here: “I have written.” When you combine a form of be with a past participle, you get the passive voice: “The pie was baked. The book was written.” Test yourself. What is the passive-voice construction here?
Remember, the passive voice requires a be verb and a past participle. Been easier is not passive because easier is not a past participle. The passive voice construction is been designed.
With the passive voice, the subject of the sentence is not doing the action; the subject is being acted upon. And it is possible to leave the actor—the doer of the action—out of the sentence entirely. Thus, the passive voice has two natural consequences.
First, the normal reader expectation of actor-action-thing acted upon, which fits the typical English order of subject, verb, object, is altered. Instead, it becomes thing acted upon-action-actor. Or, because you can leave out the actor, it can become thing acted upon-action. In other words, sentences can be in natural order, like this:
Or they can be in an atypical order, like this:
Second, the passive voice tends to emphasize the thing acted upon. It removes the actor from the sentence or places the actor in a prepositional phrase at the end. Thus, the passive voice affects emphasis in the sentence.
Both these consequences of the passive voice suggest legitimate uses. Lawyers may want to change the order of the actor and action in the sentence, and lawyers may want to obscure the actor in a sentence or eliminate the actor completely. For example, in the next sentence, the emphasis is on the letter, not on the sender:
In the next sentence, the actor is intentionally hidden:
Using the passive voice in these ways is fine, as long as you do it intentionally and sparingly.
But the passive voice has drawbacks, too. It requires more words than the active voice, so it makes sentences longer. The passive voice is also dry and dull and can put readers to sleep. And when overused, the passive voice can seem evasive. Better writers use the passive voice deliberately but with thought, and not mindlessly, as a default sentence construction.
I’m trying to drag legal vocabulary into 2008. Goodness knows we don’t need words from 1908, let alone 1708. So here are a few legal words we can leave behind.
aforementioned
Why use this outdated word when its shorter cousin, aforesaid is available? I’m kidding. Eliminate them both and specify the place you are referring to.
comes now
A lawyer once asked me to settle a debate at the office: “If there is one plaintiff, it’s ‘COMES NOW Rodney Jackson, . . .’ But if there are two plaintiffs, shouldn’t it be ‘COME NOW Rodney and Melinda Jackson, . . .’?” Of course, I told him that the correct answer was to stop beginning pleadings with this archaic phrase. And drop the ALL-CAPS.
hereinabove
Almost all the here- words should go, but this is the most annoying. It’s old, and it’s vague. As with almost all legal writing, the better approach is to specify what you are referring to and where it can be found.
inter alia
Latin words that aren’t terms of art, as this one isn’t, ought to be eliminated: vel non, sub judice, sua sponte, and others. But this one I particularly dislike. Let’s use the everyday-English equivalent: among others or among other things.
instant case
“This case,” “our case,” “the Jackson case,” and “the current case” are all better.
said
As an adjective to designate a noun that has been mentioned before, this word is no more precise than this, that, these, those, and the. All it really does is make the text smell legal.
subsequent to
Its cousin, prior to, is only slightly less pretentious. Expert writers who want clean, vigorous prose prefer before and after.
witnesseth
This word has no place in modern legal drafting. If you prepare transactional documents, and you’re afraid to take it out, be brave. And look it up: you don’t have to take my word for it. One expert calls it an “antiquarian relic.” Black’s Law Dictionary 1634 (Bryan A. Garner, ed., 8th ed., 2004)
-trix suffix words like administratrix, executrix, prosecutrix, testatrix
In 1992, a legal-language expert said these forms were “dying.” David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage 600 (1992). We can no longer wait around. Kill them off now. They’re sexist, archaic, and hard to pronounce.
For further guidance on outdated and useless legal words, see