Some lawyers need to change archaic language in legal documents

‘Grandmother? The opposition lawyer wants me to give him mimeographs. Is it really a thing?

Lawyers are notorious for using archaic verbiage (often referred to as “legalese” in legal documents). Sometimes this verbiage is used for drama, and it is true that some people may respond to legal opinions sooner if there is verbiage in the document that includes a bit of pomp and circumstance. Other times lawyers simply copy and paste the same words into countless legal documents without thinking twice about what they include in the documents. However, more lawyers should actually read the archaic verbiage in some of their legal writing and update that language to better suit the modern times in which we all practice law.

Recently, I was reading a request for a document served on me in a legal matter that my firm is handling. The document requests came with a dense list of definitions, which included a long explanation of the meaning of the words in the document requests. In the definition of the word “documents”, the requests stated that “documents” included all kinds of correspondence, letters, e-mails, etc., but the request also stated that “documents” also meant telegrams and stored content on ZIP drives, tape cassettes or diskettes.

I haven’t seen a floppy disk in a few decades, and it’s doubtful anyone in legal practice or business has used floppy disks for years. It is also an exaggeration to think that the lawyers or the clients they serve have been using tapes for a very long time, although I admit that a firm I worked at six or seven years ago used tapes to record items for dictation. However, when was the last time someone sent or received a telegram? Why would my opponent think it was necessary to put the example of a telegram as the type of document I had to produce in response to this document request? Maybe my opponent should have included Pony Express dispatches, smoke signal logs and other communications in the definition as well!

Clearly, this legal verbiage had been copied and pasted for years, if not decades, with no one thinking twice about the definitions included in the document requests. However, including the telegrams example in the document request definitions section made my opponent look sloppy and a bit disconnected. More lawyers should review their legal verbiage to make sure they’re not blindly copying and pasting words without thinking about the implications of the content they’re writing.

Lawyers also often use outdated verbiage on notices they send to other lawyers and courts. Earlier in my career, it was common to see “Dear Sirs” on legal papers, and while it has apparently become rarer in recent years, I do see this greeting from time to time. This greeting is generally inappropriate as it harkens back to a time when the legal profession was an old boys’ club and the practitioners were mostly men. Sometimes people use the greeting “Dear Sirs” when everyone involved in a matter is male, but that may not be appropriate. Files change hands all the time, and a lawyer may review the papers at some point in the life of a case.

Some people write “Dear Sirs/Madames” in the notices they circulate to lawyers and courts, but that greeting may not be appropriate either. The term “Madam” has different meanings which have always made the greeting a bit funny when included in imprints. Additionally, there are more general and welcoming greetings that get the point across just as easily. For example, when sending notices to attorneys, the salutation might simply read “Dear Advisors,” which applies to everyone equally. Of course, people don’t pay too much attention to greetings, but they can have an impact on other people involved in a matter.

There are other, mostly theatrical, terms that lawyers include in legal documents, which isn’t always helpful. It is common in some legal documents to start the papers with “Now Here Comes” such and such, which seems so stiff and old. In bills of sale and other similar documents, you often find the words “know all the men by these gifts” or something similar that might be more gender neutral. It is unclear what practical impact this statement has on legal documents. Also, the words “Please take note” or something similar can get the point across without forcing the reader to unpack some Byzantine language.

Anyway, almost all lawyers copy and paste documents containing terms that they haven’t looked at for a very long time. However, lawyers need to update some of the archaic language in their legal documents. Not only are some words not applicable to the modern world, but some phrases can cause confusion and friction that can be avoided with different word choices.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diary, a website explaining how he paid off his student loans. You can reach Jordan by email at [email protected]

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