The reputation for attorneys using long words and unnecessary words is based on historical facts. In the days of monarchies when kings and queens were the deciders of everything in their respective kingdoms, few people could read and write.
The people who could write would be hired to write out the concerns or disputes of non-writing people to be sent to the king or queen of the kingdom. Other people were familiar with kings and queens and knew the “King’s English” (the language the king or queen understood and expected) and could personally present to the royalty the concerns and questions of commoners.
The representative communicators were called scriveners, barristers and solicitors (the predecessors to what attorneys are today).
Specifically, scriveners were the “writing” representatives of commoners. Scriveners were paid by the word, so scriveners unfortunately sometimes made up words to “pad” their pay. Those words became what we now know as unnecessary “legalese.” Words such as “whereas” and “heretofore” serve no real purpose but are continued to be used by some lawyers, long after scriveners stopped padding their pay.
Therefore, nowadays, people can sometimes think that everything beyond bare English simplicity in a document is unnecessary legalese. But longer words and more words are often appropriate and necessary to properly protect people, even if that complexity initially appears unnecessary.
For example, a landowner may ask an attorney to prepare paperwork for a power company to be able to put electric distribution lines along the edge of a roadway adjacent to the landowner’s property. The landowner may say, “Make it so that the power poles are no more than 20 feet into my field off the street.”
This agreement sounds simple. The attorney could prepare a document that literally states, “The power poles may be no more than 20 feet into the field off the street.”
However, a few years later, an adjacent town may rely on a poorly written law passed way back in 1888 to claim that the landowner’s property is within the town corporation limits. And, if the property is found to actually be within the town’s corporation limits, the landowner’s taxes could increase significantly.
In such an instance, the town could argue that the landowner knew or expected that the land was in the town corporation limits because the landowner’s agreement used the word “street.” If the landowner thought the land was not in town, the landowner would have used the words road, roadway or thoroughfare. Thousands of dollars might hinge on that single word.
Of course, if the attorney just followed the direct instructions of the landowner to begin with, the landowner might later claim that the attorney should have been more careful with the words. However, if the attorney took extra time to think about all of the ramifications and was more precise with the agreement (perhaps using more complex words and more words in general), the client could be upset with the delay or the extra expense involved.
Legalese exists, but not all long and complex words are legalese.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.