The Tower of Babel is a bible story that often comes to mind in my world of legalese and in the larger world where miscommunications and lack of communications among humans in various silos run rampant. As the book of Genesis describes the scenario, humans decided to build their tower to reach God, in all their arrogance, and God in turn made them speak different languages so they could no longer work collaboratively.
Forever (by that I mean since I have been in the legal profession), we have been taught to avoid “legalese” and use plain language. Unfortunately, the theory and the practice are often two different things. In every walk of life, not just law, there is jargon that includes and excludes people’s ability to comprehend. Many agreements require a lawyer to interpret them.
My earliest conflict with legal language (I have noted before) was in relation to my upcoming oath of office which I had to take before I could be admitted to the Bar and officially become a lawyer. The oath related to what I would promise not to do to men. I bit the bullet as I wanted admission to the privileged and powerful world of law. I was recently reminded that it was only a couple of months later that one of my law professors was admitted to the Bar, who apparently thought the same as me, but changed the words to use “person” in her oath. She sits on our Supreme Court of Canada at this time. Where I saw cause for quiet complaint (or perhaps a rant), she saw cause for action. Words matter. Action even more.
I was recently drafting some not-for-profit society bylaws and came across a precedent that gave me flashbacks to the above event and used a lot of legalese. It seemed to remedy the gender issue with a “his/her”. If there is anything I enjoy less than the generic “man” including woman (so does “person” by the way) or vice versa, it is a “his/her”. Especially if I have to choose one for a document as for some names, you just do not know. I prefer generic inclusive language, one plain size that fits all. The precedent further went on to state that the singular shall include the plural. In that case I changed the pronoun to a “they” and noted this included the singular. Close enough.
As much as we heretofore have got, and hereafter may get, lost in legalese, the word salads thrown around by some politicians trying to walk the highwire of politics is beyond compare. Political speeches (often with lawyers in the background, or lawyers turned into politicians giving them) definitely are an art to behold. While you desperately analyze the information to determine if anything was actually said, you can usually find a sound bite or two to carry the day. We have simplified the overly complex with sound bites. We use some of those sound bites as labels for people. This simplification does not seem to be leading us towards a more collaborative path. The Tower of Babel is upon us, and we need to find a proverbial Heimlich maneuver before we choke.
Donna Purcell, K.C., (aka Lady Justice) is a Central Alberta lawyer and Chief Innovation Officer with Donna Purcell QC Law. If you have legal questions, contact dpurcell@dpqclaw.com.