Some people think lawyers talk too much. Others believe lawyers say the wrong thing. This article is for those of us who simply get confused whenever lawyers talk to us.

DON'T ALL PROFESSIONALS HIDE BEHIND WORDS?

Lawyers like to take something obvious and break it down into little pieces because that is what "analysis" is. It's a device some professionals use to not see the forest while they mechanically bark up the wrong tree. In other words, its one of the many ways that professionals can hide behind what they do and how they do it. On the other hand, many professionals like to look at the pieces of the jig saw puzzle to see what makes each piece tick before putting them all back together again with greater harmony.

"Talk is cheap." The easiest way to hide behind what one does or does not do is to talk.

More than one hundred years ago in Introduction to the Method of Leonardo da Vinci, according to Familiar Quotations, someone wrote: "The folly of mistaking --- a torrent of verbiage for a spring of capital truths, and oneself for an oracle, is inborn in us."

ISN'T THE PROFESSIONAL'S RELATIONSHIP WITH A PATIENT OR CLIENT ALWAYS VERY ONE SIDED?

Clients and patients are dependent. Doctors and lawyers are trusted and depended upon.

The patient or client needs the professional to help them problem solve.

"Doctor, make me feel better" and "Counsel, slay my adversaries and make me a winner" are part of our culture.

THE MYSTIQUE OF LAW WASN'T INVENTED BY LAWYERS

Today, we accept the fact that patients get to control their own bodies and doctors need to fully and fairly inform them. There was a time this was not so. The belief was that the less the patient knew the easier it was for the physician to do his or her thing without interference and with blind faith. As a result, one didn't tell a patient she had cancer of her soft tissues. Instead, she had "adenosarcoma". The newborn not getting enough oxygen is suffering from "hypoxia" or "anoxia".

The mystique of medicine was invented long before the mystique of law.

But even before we had doctors, mommies and daddies were saying things like: "Did you hide the C-A-N-D-Y?" Weren't they using their own mystique of adulthood?

The first thing any new profession, including business and insurance, does, is to develop its own vernacular and patois replete with secret code words and catch phrases. People in groups who form professions get a bit sophisticated but the origins of the sorority, the gang, and even the tribal chant stay with us.

WHAT DID THE LAWYERS BRING TO THE PARTY?

There was a time in early England, where most of our law comes from, when very few people could read or write. When someone of means was dying, they would whisper their wishes into the Priest's ear. As a result, the Church did very well with inheritances. Later, the "Scriveners," or writers, would start writing down the dying person's wishes and, as a result, a power struggle between the clergy and the new group came about. "Beckett," the book and movie does a good job of identifying how this was merged in early England.

From getting paid a penny a word to today's powerful hold on most cultures, the lawyer group developed rapidly.

The first thing every new group needs to do is develop a language that outsiders can't understand. "You can't keep your money in the family forever" became "The Rule Against Perpetuities."

Physicians had a great deal of logic to their jargon. By mastering prefixes and suffixes, an outsider could pretty well understand a lot of what the doctors were saying. "Cardia or cardio" anything had something to do with the heart. Anything "lysis" would be a break down or dissolution of something.

Lawyers had only the English language to play with at first. Sixty per cent of English derives from Latin, however, so even without the Greek and German derivations that physicians got to play with, there was still enough room for lawyers to develop a "secret language". In early common law when a judge wanted to make new law without precedent, the judge would bring in French or Latin. It was never clear whether its purpose was to disguise what was being said or only to make it seem more learned and weighty. As a result, even today, we have an order of proof concept called "Res Ipsa Loquitur" which means "The thing speaks for itself".

The early judicial system was dependent upon going to the right court the first time. If you had a civil wrong, you needed to seek a writ of "Trespass" but if you were dealing with a breach of contract, you needed to go for "Trespass on the Case". Form was then more important than substance. Many people in the civil justice system are still pedantic and are still married to formality.

Much of the legal mystique came about by using long words instead of the simple anglo-saxon short words. One didn't "chew", one "masticated". You can see how lawyers borrowed camouflage from the medical profession early on.

A PRIMER ON VERBIAGE

I had a partner once who used to drive me crazy by telling the secretary to draw a check. I was brought up to believe one drew a picture or drew water from a well but us simple folk only wrote out a check. He was, however, in the mainstream.

Lawyers don't create contracts or wills, they draft them. Their clients don't sign documents but execute them.

Lawyers don't read other lawyer's documents, they review them.

They don't resolve problems but instead analyze them.

A lawyer never "snows" or "b.s.'s" the other side or a jury and certainly doesn't camouflage issues or smoke-screen reality. Instead the lawyer obfuscates them.

A client looks at a statement from her lawyer which indicates the lawyer spent so many hours "reviewing a particular document". The client doesn't know if the lawyer skimmed it, scanned it, read it, perused it, studied it or analyzed it and each of these gradations are removed by degree from the others.

My first job out of undergraduate school was working with scientists in industry. My task was to report to our president their progress on various projects. My accounting background didn't give me a clue as to what they were talking about, most of the time. I was young and naive so I did the unthinkable! I announced that I was going to do the job the best I could but I would honestly report that I hadn't the foggiest unless they explained to me in plain English what they were doing and their progress. I got a great education. The scientists got an even better education. You see the president of our company was a college philosophy drop out who didn't speak engineering or sci-talk either.

The trick in dealing with any professional is to force the professional to explain in simple English what they wish to communicate. If they can't explain it to you, they'll never be able to persuade a jury.

Land was the basis of what most people fought about in war. In early common law, real property was the first specialty to master jargon. One transferred property by "enfeoffment." Today, the pleading still used is "Lis Pendens" instead of "pending litigation".

A whole bunch of jargon came about in business and contracts. Promises became covenants. Cancel became rescind. Something which had to occur before something else came into being became a "condition precedent" while something which only came about when something else first occurred became a "condition subsequent."

In civil wrongs, a bad dude or wrong-doer was a "tort-feasor".

Criminal law went wild with "mens rea" (from Latin) a guilty mind. Not to be outdone, civil law had "scienter" which means the same thing.

Lawyers in entertainment invented "Play or pay" and a whole body of jargon unique to their specialty. The probate lawyers speak a language the tax attorneys can't understand and visa versa.

In some areas, the act was cleaned up because society became less able to accept earlier concepts. Labor law, for example, came from the law of "Master & Servant". We also have "respondent superior" or the "buck stops at the boss' desk."

PERHAPS MOST JARGON IS REALLY NEEDED AND IS NOT MERELY DESIGNED TO KEEP OUTSIDERS IN THE DARK. THE TRICK IS TO KNOW THE DIFFERENCE.

"Words of art" refers to words that have no meaning outside of law or a very particular meaning to lawyers (or other professions) alone.

"Legal Fiction" refers to rationalization used to justify a particular result without a solid basis in facts or law.

Legislators write statutes using words. All words are symbols which approximate ideas or concepts in a manner one hopes will be mutually understood. For every lawyer making a career of creating tight language with a single, clear meaning, there's another lawyer somewhere who gets paid to find the ambiguity, the loophole.

If words don't have a shared meaning, we are back to the Tower of Babel and really back to the cave dwelling tribe which is not far removed from the JUNGLE. In other words, we need shared meanings to communicate. We need to communicate to keep the peace. We need law and order to keep the peace. We need lawyers to help define law and order. Somebody needs to specialize in words. If society permitted English Professors to do the job, things would sound better but disputes might not get resolved by keeping the peace. For sure, there would be a different "Rule in Shelley's Case" then the one given on bar exams. Ah, you say: "Why not have semanticists do the job?"

Picture a more primitive society. Moses comes down from the mountain with stone tablets.

The English Professor might have said: "I like 'shalt not' better than 'shall not' but we really need to change 'kill' to 'twill' to get alliteration and reverberation.

The lawyer might have said: "Yeah, but when God says 'Thou shalt not kill' what does God really mean? If God had meant 'Thou shalt not slay' wouldn't God have said that on the stone tablet? Besides, when Cain slew Able did he really have 'mens rea'?"

The semanticist, on the other hand, would need to get all the permeations of that four-word, one liner out. There would be a book on: " Thou shalt not kill aka slay (footnote 1) aka waste (footnote 2) aka contract (footnote 3) and this really means you (Appendix A) and we don't care what you're thinking at the time (Appendix B) and forget Murder I and Homicide and Vehicular Manslaughter (Prologue) and see Appendix C for pro-life vs. freedom of choice, See Appendix D for war vs. peace and Footnote 4 for following orders vs. doing what you feel like, and etc. etc. etc."

Moses would still be up on the mountain and we'd never have had the other nine commandments.

Now, that was the easy one. How far do we get with the language of our Bill of Rights? After two hundred years, we still need nine people devoting an awful lot of time telling us what freedom of speech and press and assembly means.

In England, still today, "Solicitors" have clients and select litigators who are a select group of "Barristers". In this country, "Barristers" is used to describe young lawyers. Although "Transactional Lawyer" refers generally to business and other lawyers who do not go to trial, and "Trial Lawyers" are thought of as litigators, there are an awful lot of flop-overs. Divorce lawyers do a great deal of transactional stuff and also go to trial but they don't do juries so purists don't think of them as "trial lawyers".

Because lawyers are pragmatists, they need to communicate with some shared understanding of the things said. Webster defines "pragmatic" as "skilled in law or business--relating to matters of fact or practical affairs often to the exclusion of intellectual or artistic matters."

You can see that things were easier in times when we only had ten pretty strict rules. Society became more complex. We needed more rules. As a result, we needed more lawyers. We can't blame lawyers for population explosions, ease of transportation, speed of communication, and all the things which make life more complicated than it was.

In legal parlance "Black Letter Law" was thought of as the rule of law. But rules have exceptions and exceptions have exceptions.

Here's an example of how the rule and exception to the rule are applied and how they change over the years.

(taken from Corpus Juris "being a complete and systematic statement of the whole body of the law as embodied and developed in all reported decisions" (1916):

Rule: "In actions for libel and slander counsel are exempt from liability for defamatory language in the pleadings, or published or uttered in the course of judicial proceedings."

Exception: "Provided such language is pertinent and material to the case."

Here's what happens in only 80 years.

(taken from California Civil Code Section 47 (b) (2) which starts out simply enough with):

(Rule) "A privileged publication or broadcast is one made in any judicial proceeding."

(Exception) (1) "An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment is material and relevant to the issues in the action."

You can see by the italicized material that the basic concept of the exception hasn't changed in 80 years. The only real change is a very, very verbose qualification. The old expression "Philadelphia Lawyer" may have been prematurely awarded.

Since 1891, Black's Law Dictionary has been the bible for American lawyers. "Pragmatic" does not appear, but "Practicable" does. It is defined in Black's as "that which may be done, practiced or accomplished, that which is performable, feasible, possible". It is supported by four case citations.

A newer, popular book is Barron's Law Dictionary. Neither pragmatic nor practical nor practicable are defined.

Traditionally, many law books have sections called "Words and Phrases."

"Shyster", itself is a put down invented by lawyers about lawyers. Scheuster was a New York lawyer who constantly quibbled over insignificant details. (This was called pettifoggery which must be distinguished from obfuscating. The obfuscator answers every question with a sermon while the pettifogger hangs you up on your first syllable.) Black's Law Dictionary defined "shyster" as "a trickish knave; one who carries on any business, especially a legal business, in a dishonest way.---An unscrupulous practitioner who disgraces his profession by doing mean work, and resorts to sharp practice to do it." Of course, once a pettifogger gets to write statutes, the statutes get longer and longer and longer. Generally, lawyers aren't as lucky as doctors who get vile and loathsome diseases named after them. Perhaps someday we'll have a whole slew of jargon for celebrity lawyers who beat murder charges, win losing cases, etc. Only time will tell whether they will be heroes or villains.

Barron's Law Dictionary didn't think "Shyster" was worth defining in 1996 but defines "De Minimis" as "insignificant; minute; frivolous.---Trifles." (It's not clear whether the "itsy bitsy spider" is a good guy or bad guy nowadays.)

Because legal borrowing from Latin is usually done by lawyers who studied German or Greek as undergraduates, phrases borrowed are somewhat arbitrary. There is no "De Maximus" which, to someone from Brooklyn, would be "de biggest, de mostest, de best".

SUMMARY:

Now, you're ready for a definition of the word "jargon". To begin with, it can't be found in either of the law dictionaries. Websters has quite a few definitions. All of them summarize what we've been talking about today.

A strange, outlandish, or barbarous language or dialect;

Obscure and often pretentious language marked by circumlocutions and long words;

The technical terminology or characteristic idiom of a special activity or group;

A hybrid language or dialect simplified in vocabulary and grammar and used for communication between peoples of different speech.

You can see that if the purpose or motive or reason to use a trick word or funny word is to becloud the issue and keep clients and the public from finding out what's going on, "jargon" is generally bad. If, on the other hand, jargon is used to explain or simplify, or make a point, then it's not so bad after all.

I'd keep going on until you could all talk "lawyereze" but I'm only getting a penny a word so thanks, anyway.