Ten legal words and phrases we can do without
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Why use this outdated word when its shorter cousin, aforesaid is available?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For further guidance on outdated and useless legal words, see
- Adam Freedman, The Party of the First Part: The Curious World of Legalese (2007).
- Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).
- David Mellinkoff, Mellinkoff’s Dictionary of American Legal Usage (1992).
Can we add "failed to..." and "refused to ..." to the list? Those phrases (esp. the former) soil all reaches of legal writing.
Sometimes, "failed to" is necessary as a term of art, as in "failed to state a claim" or "failed to exhaust administrative remedies."
But it's much more often used to replace the construction "did not." "Plaintiff failed to produce documents." v. "Plaintiff did not produce documents." It should be an effective phrasing to use sparingly for emphasis; unfortunately, it's now been ruined by overuse.
Wayne says:
Agreed.
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Why, oh, why, do lawyers continue to use these words and phrases? It makes me cringe when I read them, and let me tell you, I have to cringe a lot. I can't stand them and don't use them in my pleadings.
That said, I once had a judge tell me that a pleading was factually inaccurate when I used "testator: instead of "testatrix."
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I for one like "comes now." It evokes the feel of a medieval Court, with the bailiff announcing the arrival of the parties, who present themselves to receive justice. Once we eliminate these forms, a connection with the oral past will be lost. We will lose our ability to imagine away the mundane character of everyday life, through language. Who do these terms hurt? Why the hue and cry? It's not like these old terms are mandatory--we've done away with archaic rules that WERE hurtful, the forms of pleading. And we can thank Saint Thomas More for that!
All best to you Professor Schiess!
Your former student,
Matthew Nickson
Wayne says:
Greetings. Nice to hear from you.
COMES NOW is harmless, and it has a surprisingly large number of defenders.
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I must strongly disagree that "comes now" is harmless. The main harm isn't from the phrase being archaic. "Comes now" opens a brief by introducing procedural facts. But procedural facts don't belong in the opening! The opening should be a "bold synopsis" (Schiess) or "deep issues" (Garner). "Comes now" isn't just an archaic phrase; it's tied to archaic practices.
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