When I was in law school, I had the good fortune to be chosen as a research assistant to a law professor who was trying to write a book on Plain English. This was the late 80’s.
I was a fair to middling law student, and was quite thrilled to have been chosen for anything. The competition in that “Type-A “commune was that fierce. Others grasped for the brass ring, battling for positions on law review, or vying for clerkships. It was all I could do, to avoid dying of boredom, sifting through cases and statutes as dry as dust, desperately seeking to uncover the gems of wisdom hidden therein.
The Plain English Movement probably had the side effect of making the lives of subsequent law students a bit easier. But primarily it benefited the common man. The idea was to take archaic legalese and turn it into something generally comprehensible. A very laudable ambition, although I cannot say that it has been completely realized.
My job had less to do with content, and more to do with indexing the compendium, but I felt proud to be part of such an effort. Prior to the Plain English Movement, and the simplification of documents, it was probably much harder for a layperson to litigate a case pro se (not that it’s wise to do it now). Legal Zoom and similar do-it-yourself sites might well never have happened.
Today, at least, you can read through the Plain English summary of many documents and understand the basic terms of your loans (or mortgages, or credit cards or leases). Before you sign on the dotted line.
Things have definitely improved. Though many, if not most, still don’t read before they sign or click agree.
No Remedy for Legal Writing
Legal language has a way of gumming up the gears of comprehension. I’m not sure if it is a factor of the words themselves, or of the way they are (sometimes inexpertly) strung together.
As an English major, I had particular trouble with this in law school. In fact, when I was admitted, I was told I would have to take a remedial writing class. Apparently my LSAT essay score showed that I would be less than successful at legal writing. This was an insult of the highest order and I dug my heels in. I ignored the recommendation.
Perhaps to my own detriment. Legal writing was harder than I thought. There is a certain level of discipline required, an impatience for extraneous facts, emotions, opinions or attitudes. And at least at the law school level, there is a dislike for flowery language of any kind.
That is, of course, the exact type of language that English majors are trained, and encouraged, to use.
Just the facts ma’am.
It was as if my old Argumentative and Persuasive Writing class during undergrad had been working out at the gym. It had gained muscle, and now, it was pushing me around.
Legal writing is not usually a meandering, friendly sort of thing. It is purposeful. And usually one-sided. It is a weapon designed to fatally wound its target. It is a barbed wire fence, built around the client for the sole purpose of protecting him, at the expense of all others. It is a supplication, designed to manipulate the heartstrings of those who read or hear it, in order to draw them over to a point of view more sympathetic to the client.
It has its place.
The Impediment of Writing “Well”
I experienced a lot of growing pains, trying to adjust to the demands of this new genre. Spending four years reading novels and poetry was no preparation for interpreting these harsh, discordant voices, obscurely wrestling arcane concepts into modern molds.
And yet the writing could be beautiful at times. Some of the judges and justices were eloquent and precise and flawlessly logical, even when introducing brand new principles. Metaphor was carried, in some decisions, to a new height.
My Legal Writing class was not the only one in which my English major became an impediment.
My Property professor, God rest his soul, singled us out by major on the first day of class. Engineers, business majors, computer science geeks—these would do well in his class, he predicted. Those of us with liberal arts degrees were destined to flounder. And flounder I did. That class is responsible for most of my “missed exam” nightmares, to this day. I did not truly understand the concept of the entail until I watched Downton Abbey.
Because of this background of being tortured, slowly, into producing a (barely) respectable version of legal writing, I am very alert to silly formulations and unintended meanings in documents penned by a lawyer’s hand.
The latest one I found was in a waiver of liability. You cannot throw a cat without hitting some place that will demand such a waiver from you. A gym, a school, a church for homeschool coop, an outdoor event for children. Swimming was actually forbidden on field trips by our school district because of one accident, long ago, in which a child died. I am absolutely all for the safety of children, of adults even, although I think we are often being protected only from ourselves. But surely danger cannot be entirely legislated or drafted out of existence? And fault shouldn’t be.
Anyway, this waiver contained the following language:
“…my participation…and/or use of such equipment may result in [list of horrible injuries], death or other ailments that could cause serious disability…”
The lack of an Oxford comma in this series makes all the difference.
If they had put a comma in after the word “death,” it would not have caught my eye.
But just the phrase: “death or other ailments!” It is laughable to include death among sicknesses and injuries infinitely less final, as if death were an illness to be recovered from, given enough time and the proper care.
But then, to say that “death…could cause serious disability” is even more ridiculous. Such a disability must be serious indeed.
The Disability of Death
This made me think of the disability caused by Death.
Indulge me here. Obviously, Death is an impediment to doing many things. Speaking, for instance. Expressing your opinion. Arguing your case. Objecting to things going on around you.
Charlottesville, Virginia has had a very tough weekend, with horrible unforeseen events swirling around the attempt to make history “right” somehow.
Is it right when we remember history, and commemorate it, by preserving monuments put up by earlier generations, regardless of what they stand for? Should we preserve history, warts and all?
Or is it right when we undo the overzealousness of a less inclusive, agenda-packed, earlier era (such as Jim Crow) and tear down its monuments (to the Civil War) because we now believe they were erected for the wrong reasons (to humiliate, subjugate and keep a class of people “in their place?”)
It makes me wonder what the dead would say.
- The poor woman who gave her life so needlessly. I would not presume to guess at her words.
- Thomas Jefferson, the slave owner and statesman, founder of the University of Virginia. An outstanding and accomplished man. But, in his complicated relationship with race, no more honorable than other white men of his time and class. What would he say, had he witnessed this “peaceful” protest and counter-protest, this “expression” of free speech and the right to assemble, turned violent?
- Robert E. Lee, the brilliant general who fought for the losing side. The side we now revile, looking on it with our 21st century eyes. Because of its efforts to preserve slavery, a shameful economic institution, blighted by corruption and human rights abuse. What would he say, of this effort to obliterate the memory of his military service?
And what about the many, many other, more humble-born, dead?
- The Confederate soldier ancestors of people across the country. Some of their progeny cherish the mementos or memories of their brave lost forefathers and mothers. They consider them none the less brave, even though they fought for a cause and a way of life that, in part, espoused both cruelty and bigotry.
- The slave ancestors of people across the country. Their progeny live, today, in a country still filled with discrimination based on race. The continued exaltation in statuary of villains, who fought to continue their ancestors’ complete oppression, in a war that bought them only slightly more freedom, and far less than full equality, probably feels like an insult to follow their injury.
“Righting” and Writing History
Through modern media, straight from Charlottesville, VA, the most extreme views are on display every hour. White Supremacists who want the South to rise again. People who want to erase the Confederacy from the record book, as if this would somehow undo all that has gone before. And a few moderate voices, suggesting change, suggesting amendment, suggesting education.
I live in a Southern town with questionable statues. I am a transplant, a Yankee who imitated Southern voices as a child, thinking a Southern accent made people sound stupid. I remember thinking, how could they allow that to happen, those stupid Southerners. Surely, they knew, like we, Up North, that slavery was bad? How could they perpetuate it, profit from it, how could they fight a war defending it? (As if the Yankees were somehow free from sin!)
I hear these kinds of comments from my kids all the time. When you are removed by a generation or more, you cannot fathom what could lead them to such idiocy. This is the province of historians, and only they can pretend to grapple with such questions.
- Why didn’t women always work?
- Why did the Holocaust happen?
- Why did we go to Vietnam?
Impossible questions to answer. You had to be there.
To me, the message to be learned from all this, is this:
Regardless of what the living want, the dead would want their story to be told.
All of it. All of them.
But they can’t say. They don’t have a voice. Because of Death and other ailments.