Why not a greater understanding of lawyer-linguists?
Thread poster: Lucille Kapl (X)

Lucille Kapl (X)  Identity Verified
United States
Local time: 06:04
Arabic to English
Apr 28, 2013

I awakened this morning to a posting at one of my Linked In groups by a highly respected translator who works with legal materials (among other specialties). The posting was a cleverly written article enumerating, in list form, all the stupid and otherwise bad ways in which lawyers purportedly draft contracts. The writer, who is not an attorney, captioned the piece along the lines of "How to Draft a Proper Commercial Contract." In actuality, the article included no such instructions (which is good, since individuals not licensed to practice law are technically not allowed, in most countries, to provide advice on preparing legal documents); It was simply a list of all the things that lawyers, as a class, purportedly ALWAYS get wrong in drafting.

As a lawyer-linguist, and someone who taught legal writing to law students and young lawyers for over 4 years, I was dismayed. Here in the U.S., at least, we teach, in law school, that contracts and all other legal instruments and papers (including legislation and regulations) should always be crafted with directness and simplicity in mind. My students mastered this brilliantly, and many went on to become renowned legal writers, capable of avoiding needless jargon, and of producing smooth, crisp, and direct statements in their legal materials. Sure there are lawyers out there who are not doing well enough, in this regard, but the article's theme was that ALL lawyers write badly, and ALL lawyers deliberately attempt to obfuscate, in their writing.

The article also stated that contracts are typically 'boilerplates,' i.e., taken off of templates, but in reality and practice, this is certainly not the case for contracts addressed to complex subject matter of any kind.

All told, I was stunned at the stereotyping and lawyer-bashing in this article, and wondering why it isn't more obvious, in the community of translation, that legal terms of art, and legal instruments, which, by their nature, are genuinely and rightfully technical, are best translated by real lawyers. . .

There should be no shame in deferring to specialized professionals, in our field, right? We routinely accept that scientists and engineers are the best translators of patent materials, and that people with real medical grounding are the best translators of medical materials. Why, then, do lawyers fail to curry any appreciation for the added value they bring to translations of legal materials, and why do non-lawyer translators feel so sure that they know better than lawyers what are the norms and standards in professional legal writing? I'll enjoy feedback on this!


 

Marco Ramón  Identity Verified
Mexico
Local time: 05:04
Member (2007)
English to Spanish
+ ...

Moderator of this forum
LinkedIn link Apr 28, 2013

Dear Lucille,

How can I find the posting you are talking about? Please share it.


 

Lucille Kapl (X)  Identity Verified
United States
Local time: 06:04
Arabic to English
TOPIC STARTER
Link to article that stereotypes legal writing and lawyers Apr 28, 2013

Happy, Marco, to supply the link. It's a long one:

http://www.linkedin.com/news?viewArticle=&articleID=5734193514690932767&gid=2742368&type=member&item=236278864&articleURL=http://www.danatranslation.com/index.php?option=com_content&view=article&id=173:tips-commercial-contracts-writing&catid=29:blog-posts&Itemid=222&urlhash=-qA5&goback=.gde_2742368_member_236278864

As you'll see, the writer does briefly acknowledge that direct and jargon-light writing is 'becoming' the standard in legal writing, but in doing so, she conveys inaccurately that good writing is only NOW becoming of interest to practicing attorneys who draft contracts and other legal instruments. As I mentioned in my comment, the "plain English for lawyers" movement started over 30 years ago, and it has ABSOLUTELY been the standard in academic and practical (continuing education) training programs for many, many years.

The writer also argues that contracts may be written obscurely because attorneys seek to set themselves apart as superior or inaccessible. This is a harsh and very unfair condemnation, I think, for the majority of attorneys who actually struggle very hard to hone and improve writing techniques.

Most major U.S. law practices today have built-in coaching/editing/training programs designed to bring their practitioners up to the highest standards of accessible and readable legal English. Perhaps this trend is not present in other countries, but since the writer of the article seems to be focusing on English and Arabic-language materials (this is my language pair, btw), one must assume that she would like readers to believe that attorneys practicing in English are generally a bunch of snobs and/or buffoons. .. . Doesn't sit well with me at all. . .What do you think?


 

Tom in London
United Kingdom
Local time: 11:04
Member (2008)
Italian to English
Perceptions Apr 28, 2013

Well- there is a widely-held perception that lawyers have a vested interest in making everything as complex, incomprehensible, long-lasting and expensive as possible.

My own experience confirms, in most cases. I imagine that's because every lawyer knows they're going to be pitting their wits against another lawyer. Each party will be trying to demonstrate how astute they are.

[Edited at 2013-04-28 17:25 GMT]


 

Lucille Kapl (X)  Identity Verified
United States
Local time: 06:04
Arabic to English
TOPIC STARTER
saddened by extension of the stereotype Apr 28, 2013

I am sorry, Tom, that you feel you have been mistreated in this way, but without the legal profession, none of the human rights that have become woven into the Constitutional standards of innumerable nation states would be enforceable, today. Protections for disadvantaged minorities, across many cultures, would also be worthless, without the role of attorneys in safeguarding these. I personally come from a public interest and legal aid background (with a few years in commercial litigation), and very great numbers of U.S. lawyers, for example, spend their entire careers in these policy-related contexts. As in any profession, law includes unscrupulous practitioners, and small-minded practitioners, who are not helping-oriented, but on the whole, law is a helping profession.

If you feel that life is being made too complicated by lawyers, might you consider challenging the volumes of jumbled legislation and regulations (typically crafted by non-lawyers) that are, in fact, most often responsible for the difficulties of daily life? In my experience, legislation and regulation, much of which is nonsensical, redundant, and incomprehensible, are to blame for average citizens being unable to navigate smoothly through daily life. Most legislation and regulation is also, in my experience, finalized IN SPITE OF the contributions of good legal drafters, rather than in concord with them, and the results are often laughable.

Most of my public interest career was spent educating regulators regarding the meanings and intended applications of the unwieldy regulations that governed their own operations. . .Non-attorneys had typically drafted these monstrosities. . .and trying to making sense of them was nearly futile. . .In those agencies in which regulatory (and legislative) drafting are left to attorneys, results are consistently more meaningful.

I hope you will allow yourself a look into the bigger picture of what lawyers do. Only a tiny minority spend their gainful lives cynically, as you describe the function of your own attorney; Many, many more deal in large-scale public-policy-driven fields, where very high standards of integrity and customer service are the norm.


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:04
English to Polish
+ ...
Sigh Apr 29, 2013

To quote a linguist and lawyer conversation:

Lawyer says something.
Linguist: That expression was an interlingual interference.
Lawyer: Is the expression "interlingual interference" not an expression in itself?

There's some really ugly language in linguistics theory and linguists have no right to complain about lawyers. Actually, lawyers preserve the high quality language that was the standard several decades ago and that linguists tend to fail to get these days (along with advanced grammar and formal register).


 
Post removed: This post was hidden by a moderator or staff member for the following reason: Tahira Rafiq asked to delete the post.

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:04
English to Polish
+ ...
Contracts and litigation Apr 29, 2013

tahira rafiq wrote:

As lawyer linguists, it would be an advantage for translators to have a professional qualification as lawyers. A smallest detail or a nuance can change the legal meaning or outcome of a legal procedure, and also lawyers are aware of the legal implications of the words they use.
Let me say that there are multiple areas in legal translations and its a fact that most of legal translation does not relate to claims and cases. Instead, most of legal translation is related to contracts, deeds, and other commercial documents. I have spent a lot of time writing up essays on legal systems and documents during the discovery phase but I firmly beleive only the lawyers are aware of all the legal implications of their words.


Contracts actually relate to litigation a lot. It's only litigation planning or litigation contigency, rather than actual, already pending litigation. But as a litigator by education, all I see when I look at a contract is lawsuits, which is the same as when I review standard contracts agencies want me to sign. When doing my own legal work, I've got to balance lawsuit pre-emption with client conversion (i.e. the risk of alienating a client with the language of disclaimers) and decide what's worth it and what's not. I've actually used the inverted pyramid in drafting legal clauses, just as much as I've done claim prevention.

For the record, litigation is the reason why lawyers sometimes fall back on familiar, precise legalese, as opposed to running a plain language experiment (which results in language that's everything but plain when dissected for litigation needs). In fact, you can write your contracts for the trial court or for the appellate court, and they will look different, just as when litigators write something they don't even expect the trial court to get (much less grant), it's simply written for the last tiers of appeal.

Legalese is actually precise, even though some people don't understand it (some people don't understand a bus schedule), and can even be pretty, while "plain language" is neither pretty nor precise.

On the other hand, when you want the parties to play by the rules, and you're actually including stuff that isn't disclaimers (i.e. isn't ostensibly, intended to preempt claims), then you can use normal English or whatever other normal language you'd be using (which is not the same as the "plain language" used by some lawyers and government agencies, by the way, but real, normal language).

Bottom line, I'd have a jolly good time inserting "ain't" in a legal contract (I hope I'm gonna do that before I die) but I dislike the "plain language" linguists are coming up with, because it's ugly. It's possible to write better than that and still be understood by normal people or even unschooled people, it just takes more effort. Using short Anglo-Saxon words comes to mind as far as English is concerned.


 

Lucille Kapl (X)  Identity Verified
United States
Local time: 06:04
Arabic to English
TOPIC STARTER
legal terms of art: Yes! precise and better than 'plain English' when used well Apr 29, 2013

Thank you, Lukasz, for that excellent point about the beauty and complete appropriateness of well-placed legal terms of art (aka legalese). I failed to say, in my coverage of the 'plain English for lawyers' movement, that aspiring to plain English, when helpful, does NOT mean abandoning use of those legal terms and expressions that are absolutely unique and untranslatable into non-legal terms.

Using terms of art correctly is often the MOST concise and precise way in which to express a concept. And yes, we do not draft legal documents for the sole use of laypersons. These documents have to mean something very specific to their legal audiences, in order to function as they were intended.

We don't ask doctors to write prescriptions in 'plain English.' We don't ask engineers to write specifications for projects in 'plain English.' . . .We don't ask linguists to abandon the terminology that helps them to express difficult linguistic concepts. . .etc.

And so while it is nice to be able, in the right circumstances, to translate a term of art into plain English (or any other language), it is simply wrong to try to do so when ONLY that term of art will suffice to convey intended meaning.

I recently encountered a help request from a translator who didn't want to use the term 'habeas corpus' in what I think was a translation into English. Other translators were suggesting that the translator actually use "you have the body" as a substitute way of describing the habeas corpus writ. What nonsense!!!! That we use Latin to label particular writs, or other non-everyday vocabulary to describe strictly legal concepts (e.g. "judicial review") does NOT mean that we are obfuscating. On the contrary: It means that we know exactly what we want to say, and that we know exactly the best and only way in which to convey it (:^).


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 12:04
English to Polish
+ ...
Some more May 1, 2013

Lucille Kaplan wrote:

Thank you, Lukasz, for that excellent point about the beauty and complete appropriateness of well-placed legal terms of art (aka legalese). I failed to say, in my coverage of the 'plain English for lawyers' movement, that aspiring to plain English, when helpful, does NOT mean abandoning use of those legal terms and expressions that are absolutely unique and untranslatable into non-legal terms.


Thanks, Lucille. Another problem with plain English is that it's still some kind of artificial government English, and we all know how that turns out. (EU English for example.)

Reminds me of a Vaticanum II joke. There was an injunction to use translated vespers but the translations were late in arriving. A local pastor with some literary education came in with a provisional Italian version. Nobody got it. So he asked them if they understood, 'Post transitum maris rubri.' And they did.

The supposedly plain language reminds me of artificial B2-level non-native constructs. No emphasis, no nothing, just bland, simplest ever indicative that doesn't take account of anything. I'm exaggerating but then, I'm talking about my feelings here.

Using terms of art correctly is often the MOST concise and precise way in which to express a concept.


Yup. And sometimes operative verbs rise to that level.

And yes, we do not draft legal documents for the sole use of laypersons. These documents have to mean something very specific to their legal audiences, in order to function as they were intended.


Yup. To illustrate the problem further, let's take "aid and abet". Feels great to make it just "help". Probably acceptable deep in the narration of all those merry-flowing pleadings. But sooner or later, since criminal liability is at stake and criminal liability is a very serious thing, we're going to have to define "helping". And that's awful. Using those defined, archaic or niche terms may be tedious, but redefining normal language is awful. If any translator reading this feels inclined to disagree, please recall your last "project" where you received a thick client-made glossary imposing arbitrary, non-standard translations of just about every word you had to translate. That's where plain language in law is headed unless its users are acutely aware of whatever they are doing.

We don't ask doctors to write prescriptions in 'plain English.' We don't ask engineers to write specifications for projects in 'plain English.' . . .We don't ask linguists to abandon the terminology that helps them to express difficult linguistic concepts. . .etc.


Especially the last category! Like I said before, theoretical works on linguistics contain some of the ugliest language that exists. They excuse themselves because that's a necessary tool of their trade. Well, so it is for the other dudes in other fields.

And so while it is nice to be able, in the right circumstances, to translate a term of art into plain English (or any other language), it is simply wrong to try to do so when ONLY that term of art will suffice to convey intended meaning.


There's a certain fine aspect to that problem, actually. Suppose you have a contract full of "notwithstanding the foregoing", "in default of", "nothing herein to the contrary" and all other cute phrases that warm my heart like it's 14 February. You know it's the work of professionals who weren't playing freesbie while at it (and probably not golf, either).

Now, if you saw: "no matter clause 5, if this happens then that will have to be done," "if that doesn't work out, then...," or: "unless clearly said so in this contract," then you'd probably know you were dealing with a conscious attempt to go easy on non-natives or laymen while keeping some rigour.

(And if you see a bunch of ambiguous otherwises, misapplied thereofs and parentless "the sames, you'd know someone was playing big shot and failing at it, so you're in for a long evening of cautious reading.)

...But if you start seeing "regardless", "in case" etc., then you begin to wonder if the contract should be interpreted according to the expressed meaning as understood in light of thousands of years of legal tradition or as a product of normal people using normal language. It's probably neither really, more like something in the middle, the middle being not the Aristotelian golden middle but rather a tense DMZ where they can start shooting at you from all directions at any moment.

I recently encountered a help request from a translator who didn't want to use the term 'habeas corpus' in what I think was a translation into English. Other translators were suggesting that the translator actually use "you have the body" as a substitute way of describing the habeas corpus writ. What nonsense!!!!


Wow! Come on. "Habeas corpus" is proper English. "You have the body" is a subjunctive that almost every single layman and quite a bunch of the pros will read as an indicative and unleash a flurry of nonsense.

That we use Latin to label particular writs, or other non-everyday vocabulary to describe strictly legal concepts (e.g. "judicial review") does NOT mean that we are obfuscating. On the contrary: It means that we know exactly what we want to say, and that we know exactly the best and only way in which to convey it (:^).


Yeah. There's just no translating of mandamus or error coram nobis or coram non iudicem. (Although different Latin terms may apply in other jurisdictions.) Same as with doctors' Latin. You could probably replace "cito" with "ASAP" but that's kinda it. I guess one could replace "coram" and "versus" but how about one leaves us alone instead?icon_wink.gif

Also, Latin is faster and less ambiguous much of the time, just like English when compared to other modern languages. In most cases, you can say "trial" instead of "a quo" (the court or some other authority appealed from) and "appeal" instead of "ad quem" (the body appealed to) but in other languages it's like, "... of the first instance," which takes forever to say. Lawyers know this and keep adding this stuff on and on, as evidenced by the myriad of "nulla poena" and "nullum crimen" rules, which are all of recent creation. Such Latin phrases were created even under communist jurisdictions in cold war time.icon_wink.gif


 


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