Like most fields, the language of the law has a lot of jargon. Many lawyers forget to translate that jargon when speaking with clients or the general public, which can lead to confusion or complete failures to communicate. For example, not many lawyers explain to clients that when they refer to decisions made by “the court,” they mean a decision by a judge, not the court staff, and not all clients understand. This article discusses the source of some legal jargon and explains why lawyers may use it too often.
There are at least four major sources of legal jargon: slang, formulas inherited from past centuries, unexplained terms used in court decisions, and statutes and rules. Slang tends to be used more to attempt to explain situations, sometimes successfully and sometimes not, and the other sources tend to provide terms that are used because lawyers want to ensure a result, avoid a dispute, or confirm that they are referring to an established concept.
One slang term that I have seen used in recent weeks is “ham sandwich.” This phrase derives from a statement by Sol Wachtler, then the Chief Judge of the New York Court of Appeals, who once said that a district attorney who wanted to prosecute a case could get a grand jury to indict a ham sandwich. Since then, referring to a case as a ham sandwich implies that a decision by a grand jury to indict or not indict was the result of the prosecutor’s efforts, or lack of serious effort. Other slang terms are not intended to be so disparaging. A “jailhouse lawyer,” for example, is a prisoner who helps other prisoners prepare legal arguments and briefs in the absence of an available lawyer. Jailhouse lawyers are a recognized part of the support network available to prisoners, and a prisoner skilled in research may be able to identify important matters for a court’s attention.
Conversely, most terms that descend from the early days of the law tend to be used more our of habit than anything else. A typical example is the phrase “and his [or her] heirs,” which is often seen on deeds. In the early days of the law, “and his heirs” was a required phrase to ensure that land was transferred completely. For example, if a deed read “Owner grants The Restaurant to Alice and her heirs,” Alice would receive fee (full) title to a piece of land called The Restaurant, and would be able to transfer The Restaurant to someone else or leave it to whomever she wanted in a will. On the other hand, when a deed reads “Owner grants Maggie’s Farm to Bob,” Bob gets only the rights to Maggie’s Farm for his lifetime, and after his death, not only ain’t Bob gonna work there no more, but Owner gets it back. The “and his heirs” rule is no longer the law. Nearly every state, if not all of them, have passed laws that even if “and his heirs” is left out, Bob would get the same rights as Alice, and the transfer for life has to be stated clearly. Many lawyers, however, continue to use the full “and his heirs” phrase, and the leading publisher of legal forms in Oregon includes an expanded version of the phrase (“heirs, successors, and assigns”) on its deeds.
When a court uses an unusual phrase but doesn’t explain it, lawyers often follow suit. A later court may assume that the phrase was used for a reason, and nobody wants to be the lawyer who has the reason explained to them in a way that would hurt their client – or to have to explain the situation to their malpractice insurer. A good example comes from Arizona. About 40 years ago, the Arizona Court of Appeals published an opinion which repeatedly described a lender’s interest in a property as an “actual first lien,” and enforced the lien. Since then, lawyers in Arizona have used the phrase “actual first lien” in agreements without knowing exactly what it means, but working from the assumption that it is a superior right to a “first lien.” The difference may never be explained.
When Congress or a legislature defines a term in a statute, on the other hand, lawyers know that the definition is intended, and they use the term expecting the exact meaning. Sometimes the definitions differ from the ordinarily understood meaning, and lawyers who work with the term on a regular basis sometimes forget to explain the details to their clients. For example, the Fair Debt Collection Practices Act, a federal law designed to regulate collection practices, includes a long definition of “debt collector,” available at <http://www.law.cornell.edu/uscode/text/15/1692a> (see paragraph 6). The definition has two situations under which a person is a debt collector, each of which has three conditions that need to be met, then lists six exceptions, and states that the sixth exception does not apply in some circumstances – and it’s not organized in the most logical order. It also states a third situation when a person may be a debt collector, but only for one particular regulation. Most of the time, a lawyer will not explain the entire definition. Instead, the lawyer will, after getting the details of the alleged collector’s operations, tell a client (regardless of whether the client is the alleged collector or the alleged debtor) whether he or she thinks the collector falls within the definition, possibly with a short explanation. It just saves everyone time not to go through all of the details unless it’s necessary.
Sometimes jargon is useful to help explain fine details, or to ensure that all variations of a concept are covered. Wills often use, for example, the phrase “give, devise, and bequeath.” At one time, “devise” and “bequeath” had slightly more technical meanings than they commonly do today. “Devise” usually referred to a gift of land, and “bequeath” to a gift of personal property. By using all three words, the lawyer preparing the will can cover bases to ensure that whatever was intended to be given is given.
The use of jargon can be taken to an extreme, and sometimes even judges and lawyers get tired of it all. In 1596, a lawyer who had presented an unreasonably long document to an English court was punished by having the a court officer cut a hole through the papers, hang the shreds around the lawyer’s neck, and parade him through the courts at Westminster as an example. (The lawyer was also fined ten pounds and ordered to pay the other side’s lawyer.)
If you’re confused by the jargon a lawyer is using, ask for an explanation. You’ll have a better idea what is being talked about, and the lawyer may get a reminder to be clearer.