What Do You Mean?

Quite a long time ago now I wrote a piece on the importance of lawyers, and other professionals, using intelligable language when communicating with their clients, and indeed lay people in general. My piece was called We’re all Really Interpreters and I was reminded of it by a radio discussion by Michael Rosen in the Word of Mouth series, which was on Radio 4 on 22.1.19 and will be available on their Sounds app for the next year or so.

He was talking to the family barrister Lucy Reed who blogs as Pink Tape and to an academic, Dr Laura Wright, and they agreed that the law uses a lot of unusual language that many people find hard to understand properly. This is one of Lucy’s hobby horses, as she is a leading light in The Transparency Project, which is campaigning to make things clearer, especially in the Family Courts.

Lucy has written a piece on this subject, called, somewhat more forcefully than mine, Why Do Lawyers Talk Legalese? and there is a link to it here. She explains some of the code that might puzzle the unwary layman. It’s well worth reading, and indeed following.

But it’s also important to remember that the Law, like Medicine, or Rocket Science, is a complicated technical subject, and it is impossible to eliminate all technical language, and silly to try to do so. In order to express things with the clarity that we need, lawyers have to be able to use some technical language from time to time, or we can’t do our job properly. What is wrong, and to be avoided, is using it too often, and to the wrong people.

When you get down to it, confusing language usually indicates confused thought. If you understand something properly then you should be able to explain it, at various levels of complexity, to anybody. If you can’t then you may well not know what you are talking about. If you know what I mean.

 

We’re All Really Interpreters

Somebody asked me this week to justify using Latin as a lawyer:

“Who has acted for a Roman legionary lately?”

I wittered on about it being shorthand like Mareva injunctions, and the fact that English is full on foreign words like élan, kitsch and the like, but it raises a much bigger picture once you think about things properly.

Because, in fact,  all professionals are, at heart, interpreters.

Think about it. What does an interpreter do? They translate something said in one language – say English – into another language – say German. And this requires more than just a literal translation, it needs an understanding of references, of history, of culture and more besides. And you don’t just have to translate the obvious figures of speech – tip of the tongue, knocked down with a feather – that clearly need more than a literal translation.  If the comment is polite or rude, or if it is literary or common, or pompous, or self-effacing, this all needs to be reflected too or it isn’t a good translation and lots of the subtleties of the language are being lost.

Well the same things happen if you are a lawyer and you are talking to a client. You are being asked to translate clientese into legalese and back again all the time. The client says that he wants the other side to carry out the contract on time, because this is important; you say you will make time of the essence.  The other side send you a statutory demand; you explain that if the debt isn’t paid off in 3 weeks then they can ask the court to make the client bankrupt, and the consequences that this will have.

It isn’t limited to lawyers – accountants spend a lot of their time explaining what the figures really mean, doctors tell the patient why the x-ray is bad news, and IT people write lines of program so that you can just press the buttons and get intelligible results.

Now, the problem is that all professions or specialities have a large number of terms that they use among themselves in order to express the detail that they need with precision. They know that ordinary language is just too vague and woolly to do the job. A doctor will say that the broken wrist has a Colles fracture because this is much more informative to those in the know. It will tell them what is wrong and they can immediately think of the standard treatment, the prognosis and so on. This is efficient, useful , and to be encouraged. Indeed as time goes on most professions develop ever more precise graduations of description – a differentiation between type I or type II  diabetes is useful because it shows whether insulin will be needed or whether the condition can be treated by diet alone.

The problem arises when the expressions are not used between the professionals, but between them and outsiders. If a doctor tells me that my daughter has a Le Fort II fracture and doesn’t explain more then, as a  housing lawyer, I’m really none the wiser. If I dealt in personal injuries I’d know that it was a particular sort of fracture to the bones of the face, as the knowledge spreads across into the related fields, but as a mere father I haven’t a clue, and he may as well spoken to me in German. Or Serbo-Croat.

Lawyers have the same problem. But it looks worse because a lot of legal terms have historically been expressed in Latin, the dead tongue last spoken hundreds of years ago. So they get a lot of stick from some quarters for saying that something is res judicata, or de jure, or ex parte. It isn’t the Latin that they should be concentrating on, it’s the use of technical language in an inappropriate setting. Because there is more to res judicata than just “the matter that has been decided”, and a client needs a proper explanation of this. Just saying it in English doesn’t do the job. But then “time is of the essence” or “entire contract” use English expressions that don’t in fact mean anything significant to the man in the street, and which will wash over him unless you tell him just how important they are.

No, we need to translate legal language from the contract or the advice, the lease or the will, into appropriate understandable English, of a suitable nature so that this particular client can understand it to the degree that they need to do so. Sometimes this will require a lot of explanation, and at other times you can tell them that this is a rough interpretation that they can come back to you about if the need arises. You need to judge the client’s degree of education, their knowledge of the field involved, the importance of the explanation and a host of other matters, and you need to give a seamless performance. It isn’t easy, but neither is training the lions, and it’s what this particular job requires.

And for some clients, Latin is the best way. The company secretary knows all about ultra vires, and if you don’t use it he will be puzzled. But this is unusual, and telling your personal injury client that the accident is a case of res ipsa loquitur  is rightly a cause for derision.

No, keep the Latin, and the other technicalities, to the discussions inside the profession when the exact subtleties are understood and matter – to the letters to the other side, to the submissions to the judge – and use appropriate everyday language to the clients. Because we are all interpreters. And they aren’t legionaries.