Unit 2. Legal english

Reading 1: Legalese

Pre-reading task. Read words. Mind the stress. A):

΄prejudice re΄ciprocal sub,sidi΄arity

΄triplet e΄rect ,here΄after

΄liable a΄llege ,notwith΄standing

΄justice im΄ply ,bene΄ficiary

΄technical spe΄cific ,characte΄ristic

΄jargon re΄lationship ,punctu΄ation

B) Complete the word building table.

Noun Verb	Verb Noun
justice	to erect
characteristic	to allege
prejudice	to imply
obligation	to develop
movement	to construct
to encourage	to avoid
to argue	to impose

1. Read the text about Legal English and answer the questions.

1. What way legal writing in English is characterized by?

2. What do characteristics of legal writing include?

3. What has encouraged the use of English rather than Latin in the English justice system?

4. What do a number of linking terms used in older written legal texts refer to?

Legalese

Lawyers use Latin words and expressions when writing legal texts of every kind, from statutes to emails.

Legal Language

Legal writing in English has developed over hundreds of years and is characterised by specific features, some of which can make it difficult for the non-lawyers to understand. Characteristics of legal writing include: using Latin terms; using technical terms (“subsidiarity”); using old-fashioned words not much in general use; using pair of words with reciprocal relationship (‘lessor’/’lessee’); using legal jargon (‘without prejudice to’) including the use of pairs of words (‘terms and conditions’), or triplets (‘build, erect or construct’); having special meanings for words in ordinary use (‘the judge determined the fact of the case’), where ‘determined’ means ‘decided’; using vague words (‘provide a sufficient service’); using long sentences with little punctuation; inverting word order (‘title absolute’); using capital letters to signal important or defined terms (‘the terms of the Lease…’) avoiding personal pronouns (‘you’, ‘we’, ‘I’); the specific use of the modal verb ‘shall’ to impose an obligation or duty on someone (‘The tenant shall not sub-let the whole or part of the premises.’); the use of ‘shall’ in a directory sense (‘Notice of an appeal shall be filed within 28 days.’)

There is a movement to draft legal text in standard, modern, ‘plain’ English but any change will be slow.

Note: Some legal drafters argue that the use of ‘shall’ in a directory sense is to be avoided because of confusion. Note also the general English use of ‘shall’ to refer to future intentions (‘I shall write to him’), although this use is increasingly uncommon.

Latin terms

There are many legal terms in written English legal texts, although recent reforms in the English justice system have encouraged the use of English rather than Latin. Some Latin terms are used so frequently that they are in general English use (e.g. ad hoc, bona fide, pro rata, etc.). It is useful to be able to recognize their meaning and a dictionary or online glossary will help. Forms of pronunciation vary.

ad hoc –	for this purpose	in situ –	in its original situation
affidavit –	witnessed, signed statement	inter alia –	among other things
bona fide –	in good faith	ipso facto –	by the fact
caveat –	warning	per pro –	on behalf of another
de facto –	in fact	per se –	by itself
de jure –	by right	prima facie –	at first sight
et cetera (etc.) –	and so on	pro rata –	in proportion
exempli gratia (e.g.) –	for example	quasi –	as if it were
ex parte (ex p.) –	by a party without notice	sub judice –	In the course of trial
id est (i.e.) –	that is	ultra vires –	beyond the power
in camera –	hearing a case in private	videlicet (viz) –	namely
in curia –	in open court

Older words and modern equivalents

A number of linking terms are used in older written legal texts (case reports, legislations, court documentations, contracts, etc.) to refer to other parts of the same text, to different legal documents, or to related contexts.

the aforementioned / the foregoing –	set out above / written above	notwithstanding –	despite
the undermentioned	set out below / written below	thereafter –	after that
hereafter –	after this –	thereby –	in that way / by that
hereby –	in this way / by this	therein –	in that (document)
herein –	in this (document)	thereof –	of that
hereof –	of this	thereto –	to that
hereto –	to this	therewith –	with that
herewith –	with this

2. The following excerpt is from the legal document known as an 'answer'. It was submitted to the court by the defendant. Underline the common Latin words and phrases in the text. Do you know what they mean?

The claim for breach of contract fails inter alia to state facts sufficient to constitute a cause of action, is uncertain as to what contract plaintiffs are suing on, and is uncertain in that it cannot be determined whether the contract sued on is written, oral or implied by conduct. The complaint alleges breach of contract as follows: ‘At all times herein mentioned, plaintiffs were a part [sic] to the Construction Contract, as well as intended beneficiaries to each sub­contract for the construction of the house. In light of the facts set out above, defendants, and each of them, have breached the Construction Contract.’ On its face, the claim alleges only that defendants ‘breached the Construction Contract’. But LongCo is not a party to the Construction Contract. Therefore LongCo cannot be liable for its breach. See e.g. GSI Enterprises, Inc. v. Warner (1993).

3. Match each Latin word or expression (1-8) with its English equivalent and the explanation of its use (a-h).

1. ad hoc	a thus (used after a word to indicate the original, usually incorrect, spelling or grammar in a text)
2. et alii (et al.)	b for example (used before one or more examples are given)
3. et cetera (etc.)	c for this purpose (often used as an adjective before a noun)
4. exempli gratia (e.g.)	d against (versus is abbreviated to ‘v.’ in case citations, but to 'vs.’ in all other instances)
5. id est (i.e.)	e and others (usually used to shorten a list of people, often a list of authors, appellants or defendants)
6. perse	f and other things of the same kind (used to shorten a list of similar items)
7. sic	g by itself (often used after a noun to indicate the thing itself)
8. versus (vs. or v.)	h that is (used to signal an explanation or paraphrase of a word preceding it)

4. Match each Latin term (1-10) with its English equivalent (a-j).

1	de facto	a among other things
2	ipso facto	b per year
3	inter alia	c number of shareholders or directors who have to be present at a board meeting so that it can be validly conducted
4	per annum	d in fact
5	pro forma	e of one’s own right; able to exercise one’s own legal rights
6	pro rata	f proportionally
7	quorum	g by that very fact itself
8	sui juris	h as a matter of form
9	ultra vires	i as follows
10	videlicet (viz.)	j beyond the legal powers of a person or a body

Reading 2: The Language of the Law

Pre-reading task. Read words. Mind the stress. A):

΄separate so΄licitor em΄ploy

΄barrister de΄scend ,prose΄cution

΄notary a΄ttorney a΄ccomplice

΄counsel re΄tain for΄bid

΄summarise be΄yond su΄ggest

΄verdict con΄duct ,summing-΄up

΄evidence per΄mit pro΄fession

B) Complete the word building table.

Noun/Verb Adjective	Verb Noun
proud	to descend
boast	to employ
notary	prosecution
separate	to conduct
guilty	to suggest
evidence	summing-up

1. Read the text about Legal English and answer the questions.

1. Why are the English proud of their legal system?

2. What is the difference between solicitor and barrister?

3. What are the Bar and the Bench, and why are they called so?

4. What is a jury, and what is their function in court?

5. Explain the following legal terms: beyond reasonable doubt, to turn the King/Queen’s evidence, leading question, cross-examination and summing-up.

One of the proudest boasts of the Englishman is of the British justice and the English legal system. In their pride they follow the tradition of Rome, but in their law they owe less to the Romans than almost any country in Europe. Much less, for instance, than Scotland, which has a quite different system of law from England. This peculiar English system has its own peculiar terms: to understand them you must understand a little of the system itself.

In England the legal profession is really two separate professions: solicitors and barristers. The solicitor is probably the more ancient profession. He descends from the notaries and attorneys of Elizabethan times and indeed even earlier. Only on the introduction of a solicitor can a client employ a barrister, who is referred to as a counsel. The solicitor summarises his client’s case for counsel, and the document on which he does so is called a brief. A barrister retained by a solicitor for a client is said to be briefed for him.

It is from the ranks of the Bar, as barristers corporately are called, that judges are chosen. The Bar referred to is a physical bar (it is actually a barrier []) in theCourts, beyond which no one may pass except the privileged Queen’s Counsel who have been called within the bar. Judges, thus, are not themselves a separate profession; they are barristers who have been elevated to the Bench, itself name derived from the part of the Court where they sit.

The judge decides the interpretation of the law, but, in serious criminal cases, all questions of fact are decided by a jury. Juries may also be found in civil cases, that is disputes other than criminal trials. By means of the jury, the man in the street enters upon the legal scene. In England a jury in a criminal case can return only one of two verdicts: Guilty or Not Guilty.

In order to prove its case beyond reasonable doubt the prosecution calls evidence. Since the prosecution is conducted in the name of the Queen / King, a criminal who decides to give evidence against his accomplices is to turn the King/Queen’s evidence.

In examining his witnesses counsel is forbidden to ask questions which suggest the answers he wants. Such questions are called leading questions and are permitted only in cross-examinations, that is, the procedure by which, after he/she has given his/her evidence-in-chief, a witness is further questioned by counsel for the other side. In this way the full meaning and value of the evidence is tested.

After all the evidence has been given the judge summarises the case, both law and facts, for the benefit of the jury. This is called the summing-up.

2. Match the words with their definitions.

1. counsel	a. the decision of a jury at the end of a trial
2. the Bench	b. information etc that gives reason for believing something; proof (e.g. in a law case)
3. verdict	c. a)  the institution and conduct of legal proceedings against a person; b)  the proceedings brought in the name of the Crown to put an accused on trial
4. guilty	d. a)  a judge or magistrate sitting in court in a judicial capacity; b)  judges or magistrates collectively
5. prosecution	e. someone who sees an event and reports what happened
6. accomplice	f. responsible for an offence or misdeed
7. witness	g. a barrister or group of barristers engaged in conducting cases in court and advising on legal matters
8. evidence	h. a person who helps another in committing a crime