So-called professional language and its terminology - in every profession, from plumbers to lawyers, not to mention doctors - is a natural consequence of specialisation. A lawyer does not need to be familiar with all the names associated with anatomy or physiology, nor with the terms "sink pipe, through-hole faucet and faucet entrance", especially as there are probably many different types. However, this specialised language should at least make it easier for these specialists to remember the necessary information and understand the technical issues involved.

SIGN UP TO OUR PAGE That this is not the case, we learn from a recent issue of the prestigious scientific journal PNAS, where brain and cognitive specialists from the no less prestigious Massachusetts Institute of Technology (MIT) published their research on the language of lawyers. It turns out that the legal jargon of official documents, does not make things easy to know and understand even for lawyers, let alone for ordinary Smiths and - let us assume without further research conducted in Polish - for the average Kowalski.

She did not know what she was signing

I know that films about the American justice system are not documentaries, but I have to admit that this is one of my favourite genres and I will therefore use an example taken from it. In one of the episodes of the latest series of the TV series "Ally McBeal", the boss and founder Richard Fish, while on holiday in California, agrees to professionally support a pretty, up-and-coming actress he meets there. At issue is the question of her contract, in which she has, in essence, agreed that the agency managing her career can use her 'undressed' photos in any way it wishes. She agreed, we might add, without having the faintest idea about it, because she did not fully understand what was written in that contract. She, on the other hand, is a maiden from a "good home", the daughter of a pastor in the "red belt" of the conservative states of the USA, so she had a panic attack when, after time, she realised what shoes had been sewn for her.

Richard is alone, without the real-world knowledge of procedural law and precedents of the eccentric John Cage. And he hits the judge with what he has. Simplicity of reasoning. When the judge rightly points out that he doesn't see how the case can be tried at all, because the lawyer should know better than his client that the contract signed is sacrosanct and there are financial penalties described in it for breaking it, Fish replies: "Well, that's right! I should know - but how is that to be understood by a simple man with no law school, incapable of even picking apart the sentences with which that contract is written?" The judge, since he has publicly acknowledged beforehand that the client is clearly not entitled to know, is caught in the trap of his own assertion. The contract is judicially invalidated because the person signing it did not understand and therefore had no awareness of what he was agreeing to.

I don't know if such a situation is even possible in the American legal and judicial system, and I don't know if it would be possible in Europe, but I do know that when someone tells me, a person with a doctorate in biology, to read a law in order to 'understand for myself' what the parliament meant, I realise that it might as well be written in Turkish. The problem therefore exists and is non-trivial.

Overly complex structures

The issue of the structure and intelligibility of legal language was addressed by this neuroscience laboratory some time ago, when the lead author of the now-published research paper, Eric Martínez, formerly a student at the best law school in the United States - Harvard Law School - and a licensed lawyer, joined Edward Gibson's group to obtain his PhD in biology there.

Using text analysis tools, the researchers treated numerous legal documents, newspaper texts, film scripts and scientific articles. And they found that, in legal documents, it stood out to their disadvantage that long definitions were inserted in the middle of sentences. According to language experts, the so-called embedding in the middle causes comprehension difficulties for most readers. No normal person speaks in such a way that every sentence is a digressive poem. When these multi-complex structures were replaced by a single sentence and a definition given separately, comprehension difficulties disappeared in most of the lay people surveyed, although their conceptual range did not change.

But why are legal texts constructed in this way? It was necessary to find out, too. Another two-part experiment and the resulting paper recently published in "PNAS" were devoted to this very question.

To this end, lawyers were tested on their ability to understand and use their own professional language. Several hypotheses were tentatively put forward, but the most likely one was considered to be that lawyers are so adept at writing and reading legal documents that they do not realise how difficult they are for others. Other possible explanations were that lawyers make excessive use of existing templates and the ctrl-c/ctrl-v method in their work, or that they want to impress non-lawyers or want to maintain a monopoly on legal services and justify their fees. A zero hypothesis was also formulated: legal information is so complex that it can only be communicated in a very complicated way.

More than 100 lawyers educated at various law schools and from a variety of law firms scattered across the US were tested. They were expected to perform the same tasks as those 'off the street' a year earlier.

As the authors describe: 'Experiment 1 showed that lawyers, like lay people, were less able to recall and understand content written in complex "legal" language than content of equivalent meaning given in simplified language. Experiment 2 revealed that lawyers rated linguistically simplified contracts as equally binding (enforceable) as contracts written in legal jargon. They also rated simplified contracts as superior to contracts written in legal style in several respects: overall quality, appropriateness of style and likelihood of being signed by the client."

Copy paste

Language becomes mysterious and enigmatic for two psychological reasons: we want to hide something from someone (e.g. the real consequences of signing a certain document) or we want to give the socially and socially desirable impression of being smarter than we are.

However, it is possible to internalise this jargon to such an extent that it ceases to serve any communication, to the point where we ourselves cease to understand it. In the language of the natural sciences, this process is probably not so dynamic. Although I am not basing my conviction on any research, I know the jargon well, so I may be under the expert's delusion that "it can't be simplified any further".

Nor is it possible in the existence of the phenomenon of 'legal newspeak' to exclude simple human laziness and routine, which can happen to anyone.

The results of research conducted at MIT indicate that 'lawyers copy old contracts and rewrite them for each new application. One possible reason why this has become a common practice is that lawyers want to continue using contracts that have previously been shown to be enforceable. Over time, these contracts may have become increasingly complex as lawyers have amended them for specific situations, adding centrally embedded clauses."

For a comment on these conclusions and on Polish legal jargon, I asked attorney Andrzej Mikosz, counsel, partner of the law firm Taylor Wessing. My interlocutor began by explaining: "Legal studies in Poland have less of a craft and more of an academic character. Unfortunately, adepts of legal knowledge do not get the opportunity to write much, so habits concerning the language used are formed only during their application or during their term in law firms. Lawyers teaching at law faculties even seem to be engaged in scholarly activities. However, legal wisdom, or so-called jurisprudence, is not a science. For the creation of law, its interpretation and application is the exercise of a craft, the practice of which requires proficiency in jurisprudence. In turn, it is not possible to practise law without knowledge of the professional language. Thus, for example, the expression "acting with the possible intention" will say nothing to a non-lawyer. To a lawyer it should say a lot."

As Counsel Mikosz further explained, the language of documents produced by lawyers is indeed so hermetic that it is often indigestible even to themselves. In Poland, this is often the result of the confluence of the Anglo-Saxon culture of legal document production, brought by international law firms, with the low level of knowledge demonstrated by many lawyers who are often regarded as outstanding. My interviewee cited two examples of the above.

"When I worked with a young lawyer who had graduated from Poland's oldest university and had studied law in the US, I asked him to draft a contract in English. It was the result of a meeting with the client and a thorough presentation of the parties' intentions. In the morning, I found a twenty-page draft on my desk, written in perfect legal jargon in English, which contained everything: premises (so-called recitles), statements of the parties, warranties, service, provisions for arbitration, etc., etc. It was just not clear who, to whom, what, how and for how much. Well, but the result of the hard work of compiling the various documents was impressive.

In contrast, during a transaction involving rather complicated settlements between several of its parties, the paying party was represented by a prominent 'luminary of Polish legal sciences'. In order to simplify the settlements between the parties, I proposed the use of the institution of benefit transfer. The professor did not know what I was talking about. He admitted that he did not understand this institution and wanted to describe - in a few pages of fine print - what was about to happen. Fortunately, one of his clients was a law graduate and seminarian of the late Professor Zbigniew Radwanski. The latter understood what I had in mind and put his lawyer aside," concluded attorney Mikosz.

It also happens, as my interlocutor explained, that the source of misunderstandings may be ignorance of Polish law with simultaneous application of customs and legal formulas of the countries from which the law firms operating in Poland originate, e.g. Germany. Here, a typical example is the so-called "salvatory clauses". The old German Civil Code contained a rule that the entire contract was to be deemed to be void if at least one of its provisions was invalid. Polish law always ordered to act 'in favorem contractu' - in favour of the contract. German law firms operating in Poland, however, threw in these 'salvatory clauses' - because that is the German standard.

Back to Cicero

Examples can be multiplied, like incomprehensible sentences inserted inside other sentences and legal terms incomprehensible to the general public in a single document concerning a simple matter. Which is justified by the specificity of the matter only to a certain extent. Already half a century ago, US President Richard Nixon declared that federal regulations should be written "in layman's language". However, as experiments at MIT over the past few years have shown, the intentions were laudable and it came out as usual.

This may also be the aftermath of the educational drama in which the West finds itself today. Perhaps, then, the teaching of Cicero's speeches should be revisited as a certain unrivalled model of speaking in such a way that the listener respects the intellectual level of the rhetor, but nevertheless understands him and does not regard him as a magician. It is also perhaps a splinter of an increasingly deepening conviction in the world's elites (who are largely 'post-revolutionary ones') that the process of their own legitimacy is over. And, as a consequence, the deepest possible accelerated separation from the social pits. The language of the court, as in the time of the Sun King, must be quite different from the language of the Parisian street. Which does not always mean the reality of these elites being at Versailles, but one's own limitations in terms of good manners are the hardest to transcend.

The unavoidable consequence, therefore, is a growing loss of public respect for the state and the law. Already today, lawyers and judges enjoy, according to a survey for 2022 conducted in Poland by SW Research, only 50 per cent of public esteem. This is only two per cent more than a "cleaning worker" and less than not only a firefighter (81 per cent, the leader for years), but even a much lower paid teacher (57 per cent) or a nurse (70 per cent).

What to add, other than the conclusions of the MIT cognitive scientists: '[...] lawyers who write in convoluted ways do so for convenience and out of respect for tradition, which is contrary to their own clear linguistic preference. Simplifying legal documents, on the other hand, would not only be feasible but also beneficial to lawyers and non-lawyers alike".

– Magdalena Kawalec-Segond
– Translated by Tomasz Krzyżanowski

TVP WEEKLY. Editorial team and jornalists

Sources:

https://www.pnas.org/doi/10.1073/pnas.2302672120