Erecting a language barrier

by Peter Kaye

Criticism, like charity, should begin at home. That's why it's refreshing to see attorney and educator Robert C. Fellmeth take on lawyers for their pretentious use of language. "Attorneys," he says, "could not get away with pompous behavior simply through telephone tricks or furniture.

"They must convince us they are doing something only they can do. Attorneys employ linguistic techniques to add to the mystique of the law."

Fellmeth says a common language abuse is overuse of jargon or terms of art.

"Unlike many scientific terms, most legal terms of art are gratuitous; they do not describe something which cannot be described in simpler form by a commonly understood word. They are sheer pretension.

"What does a lawyer mean when she says 'extrinsic fraud,' 'in the instant case,' 'prerogative writ,' 'discretion vested in the court by the statutes,' 'subserves the interests,' 'after the accrual of the cause of action,' 'condition precedent,' 'equitable servitude,' or 'collateral estoppel?'

"Are these words representing thoughts easily expressed by commonly understood English? Yes."

A typical attorney, says Fellmeth, will know about 300 words with a special legal sounding flavor. Half are unnecessary and the attorney can define only one-third of the remainder.

"Lawyers sprinkle their documents with words carrying unnecessary suffixes. Instead of saying 'analysis,' one might say 'analyzation;' 'substantially' instead of 'substantial.'"

Another favored technique, says Fellmeth, is gratuitous Latin.

"Some attorneys will use the Latin expression 'vel non,' which simply means 'or not.'

"Another favorite Latin term is 'a fortiori,' which simply means 'with stronger reason.' For example, 'Dr. Jones testified that the defendant could read the line of one-inch letters on the eye chart. A fortiori the defendant could also read the two-inch letters immediately above.' This certainly sounds more profound than 'if he could read the one-inch letters, he must have been able to read the two-inch letters.'

"Lawyers know virtually nothing about Latin and the Latin phrases they do use are readily translatable."

Fellmeth says lawyers love to nominalize -- to make nouns from verbs:

"For example, an attorney will write: 'Failure of proper citation may result in the rejection of an argument.' The attorney avoids the verb for the noun which has a remote but pretentious ring."

And, he goes on, the attorney will avoid personal pronouns.

"It is not dignified enough to say, 'We shall bill you on an hourly rate,' when one can say, 'Billing will be conducted on an hourly basis as accrued.' "

Simple verbs, he notes, are studded with extra syllables to give sentences the appearance of symmetry: "be subjected to," "give rise to," "exhibit a tendency to."

And simple prepositions, "of," "to" and "by," are replaced by "with respect to," "the fact that," and "in the interest of."

Fellmeth says lawyers like to overcite, overfootnote and repeat words, clauses and terms:

"Especially when writing what they call a legal document, they will try to make it sound ironclad by repeating nouns and verbs. A contract will not simply say that one party will 'sell' an item; rather he will 'sell, assign, transfer and deliver.' "

Fellmeth is a Harvard Law School graduate and the State Bar's first discipline system monitor. A former deputy district attorney and assistant United States attorney, he currently is a professor at the University of San Diego School of Law and director of its Center for Public Interest Law.

Most of all, as befits an original Nader's Raider, Fellmeth likes to puncture pomposity:

"The law is too basic to all of our lives to be left to an elite sub-language understood by one group. Attorneys go far beyond necessity."

Peter Kaye is a San Diego journalist and public member of the State Bar Board of Governors.