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| | Post New Topic | | Is it difficult to avoid legalisms? | Views: 552 | | Jan 26, 2006 3:05 pm | | Is it difficult to avoid legalisms? | # | 
Karel Frielink | |
Communication skills are particularly important for lawyers. On the one hand lawyers have to accurately debate legal issues with like-skilled/trained people and on the other hand they have to explain all this to people without any legal education.
Legal opinions and contracts often look like a collection of legalisms. So do certain - certainly not all - legal blogs. Are legal bloggers able to avoid obscure language and difficult linguistic constructions? What kind of support in communicating effectively do they need? Any suggestions?
Karel Frielink
++ KAREL'S LEGAL BLOG ++
http://www.curacao-law.com
Private Reply to Karel Frielink | | May 11, 2006 11:02 am | | re: Is it difficult to avoid legalisms? | # | 
John Dierckx | | Hi Karel,
I wanted to post this one some time ago since I have a very specific opinion on the subject. Let's start of by saying that it is not difficult at all to avoid legalisms. It's in my opinion just a matter of putting some effort in it.
The next question of course is: Do we want to avoid legalisms?
The answer to that one would most likely be: depending on what you see as your target audience.
Legalisms and specific legal terms have a double function: they create an opportunity for mutual understanding amongst peers and other trained or experienced professionals. In that way it is not that much different from some of the management mambo jambo and jargon found in other disciplines. Legalisms have are a way to communicate amongst your colleagues. More than once they also have the added advantage of grasping complex concepts into agreed formulas, thus saving a lot of words that do not neccessarily make things clearer.
However, and that is my opinion in part based on my experiences as a discovery consultant/legal investigator/ fraud examiner, when your target audience is the "normal" or "average" reader, these same legalistic formulations can easily create confusion. When people speak of "be careful of the small print" they more than once do not just refer to the size of the fonts used but also to the "big words" that do not make sense. If your blog is aimed at this same Joe average, than I would suggest avoidig legalisms as mich as possible. And here comes another issue.
Where legalisms are used by the professionals, it has been my experience that more than once they actually not have a good grasp of the concept behind the legalism themselves.
I guess in that sense my years as a freelance trainer for prison guards (Ministry of Justice) have learned me a lot. These people often having had no more education than prinmary school and 3/4 years of secondary school were confronted with readers prepared by the Ministry of Justice and filled with these same so-called legalisms.
A lot of the students initially wandered off just for that reason alone. I worked very hard in trying to translate these difficult concepts into terms that connected with their level and way of speech and I can honestly say it worked. In two years of legal classes only one student failked the test, on average only 60% passed at that time. The downside of that was that I spend probably as much time outside of my paid hours "translating" legalisms and legal concepts towards their world as with the actual teaching itself.
Some comments: "Why can't other trainers sy it like you" why do they keep things so difficult and even "do they want us to fail on this one?" I had more than once classes that were dfouble the size because students of other classes came voluntarily to sit in and learn it the "easy way".
Coming back to professionals actually not knowing what they are saying or hiding behind "big words". More than once I have found that, similar to what politicians are so good at, professionals hide behind these same legalisms just to create confusion or because they want to hide that they are actually talking about. Just every now and than put peers to the test and ask if they could "please use lay men formulations". You'd be surprised about the amount of stuttering that would follow. I do not know how many associates you have in the office, but try it out on a regular basis and I can assure you you will be surprised.
More than once, whilst assisting clients I have encountered this situation and had to renind the solicitor of who they were dealing with. Every now and then I am put to the test myself, cause inevitably you start using the same jargon just because that happens, I always ask my clients to alert me to that especially when they have the feeling they doin't exactly understand what is going on anymore.
Admitted, it happens to you and easier than you expect. A day to day example of how these legalisms and other jargon can lead to misunderstanding: you advise clients that computer forensic examination is neccessary in the course of the discopvery process. This will very often be transdlated by that client as "poking around inthe computer to find some damaging stuff". The proverbial s... hits the fan when you take all measures to ensure that all evidence is secured
(which admitteldly can be costly at times) and any further contamination is prevented (two fresh hard drives, one for the evidence and one to work with the evidence)."why can't you just "Ghost" the hard drive and start "poking around". Subsequently you find evidence in favor of the other party and report on that as well: duty under the discovery obligations in New Zealand.
Than try to explain forensic examination and discovery obligations. I think you will understand where I am coming from. This is why I have a lot of written material at hand that deals with these issues, advises in lay men's terms what the different words mean and why certain procedures and reporting is taking place. It took a lot of preparation but it certainly helps.
I am happy to see that similar obligations are put on solicitors in NZ when it comes to explaining the discovery duties and obligations.
Again however I would like to say, using legalisms or other jargon can be very helpful at times but it depends on your adressee. My golden rule is to adjust the communications to the clients level of understanding and preferably and where appropriate and possible to the clients way of wording, his range. Did you ever encounter a client read his brief of evidence or affidavit in cross examination and than saying to the other party's solicitor/barrister: did I say that? Where? I do not recall what I actually meant by that." This is exactly the point where legalisms took over and your client's words were translated into conceptualisations he does not neccessarily understand. In the end it weakens the value of his own evidence.
Similarly, clients that say" I never agreed to that". More than once it is because they never understood the fine print at all.
Coming back to the question that is central to this thread:
"Are legal bloggers able to avoid obscure language and difficult linguistic constructions? What kind of support in communicating effectively do they need? Any suggestions?"
My answer would be: yes they are able if they actually understand what they are writing themselves. They would not need any support if they are writing for peers. They might need some support or revisiting their own college notes where it comes to writing to lay people.
I often joked that maybe very lawyer should have some "back on the street seminar" in learning to communicate difficult concepts to humble people.
In another sense, and perhaps that comes with being from a very humble background, I remember the first time I saw the experession that every citizen is supposed to know the law. Well given the fact that the sheer size of it makes that impossible, I have often thought: why make it not more accessible than for "normal people". In large part this related back to the legalisms you are referring to. You will foind this back in contracts, legal documents rekated to proceedings and other documentation.
What really helped me in understanding the importnace of this was shifting from the Netherlands to New Zealand: from a European continental system toi an Anglo Saxon systen of law, I had to very quickly familiarise myself with new concepts and new approaches. It has been the best learning excperi3nce yet for me. It is only now that I am actually starting to get to the point where I might be able to translate not only to lay people terms but more importantly to the different legal systems.
A final remark. When we discuss this issue another point is that we might very well not realise anymore that we are using legalisms because they bacame partt of our vocabulary and range. It brings me back to an old friend of mine, during a discussion saying " I don't know what they are feeding you at that bl..dy University, bit I don't underdtand a word you are saying anymore, talk normal man!" Without noticing it, my vocabulary had changed. Back to the central issue this qwould mean: get some reality check every now and than: do normal people actually still underdtand you, do they get frustrated with all that jargon, do they still see you as you?
To close: legalisms are good as long as based used in mutual and equal understanding. In blogs, depending on the group you want to reach with your writings. And where they are inevitable, which can happen because of their specific meaning, make sure you explain where the general public is your target audience. My approach would preferably be to leave them out unless that would lead to missing out on the nuances that are behind these legalsms. For the general piblic you can still explain for your peers it helps in keeping the communication clear.
Hope this helps.
John
Private Reply to John Dierckx |  | |
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