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The language of law

Tortfeasor. I never had heard that word until September 1982, when it cropped up in my first-semester Torts class.

The guy who commits a civil wrong isn’t a wrongdoer, or a miscreant, or even a bad guy. He is a tortfeasor, a term that sounds shameful, possibly heinous. A guy to be avoided at all costs, unless perhaps when you are accepting his settlement check for your client.

I went to law school at Washington & Lee after a brief career as a high school English teacher. Part of that job was helping high school juniors gear up for the verbal portion of the SAT exam. Each week my colleague and I would review the books we were teaching and pull out 20-30 vocabulary words. Then we’d go over those words, give definitions and discuss synonyms and antonyms. We’d cover word families, origins and patterns.

So I went to W&L with a well-developed ear, and I wasn’t disappointed. The first year law student hears an array of strange new words and phrases, some in Latin. Tortfeasor. Res judicata. Metes and bounds. Quash. Caveat. Sua Sponte. Mens Rea.

I developed a group of friends who also were having fun with all the new language, one of whom went to the local office shop and got a sign made up, “Mens Rea.” He posted it on the door of the “Mens Room” at Lewis Hall. The sign stayed there our entire first year.

Despite our excitement over all these great new linguistic discoveries, at some point during the second semester, the reality hit us that most of what you do in law school is just read a lot words. Thousands upon thousands of them, often in cases written by people who use too many.

Once I was out of school and practicing law in Southwest Virginia, I ran into a similar problem. Howard McElroy, with whom I worked in Abingdon, said it best. Why, he asked, do lawyers insist on writing like this: “The vehicle was proceeding in a northerly direction.”

It’s so much simpler to say, “The car was headed north,” he said.

The reason is, frankly, it’s more work. It’s harder to write a short and direct paragraph than to dash off a meandering half-page, throwing in all the information you have. When I’ve schooled writers at Virginia Lawyers Weekly, that’s one of the first things they hear.

And the courts in Virginia cough up thousands of words every week, in new decisions, and they don’t always follow the rule that less-is-more. Finding a way to make sense of all that verbiage is what has made our newspaper successful: we turn them into an accessible package of case digests, so lawyers in the commonwealth know what happened and how, quickly and easily.

Lawyers can be a tough audience. Periodically we hear from the wordsmiths in the bar who keep us on our toes.

There once was a Henrico lawyer who railed when we wrote the phrase, “an Henrico judge,” on several occasions. Ultimately we decided we don’t write in Cockney and therefore he was right.

And several people have squealed when we’ve tripped on “more than/over” and “less/fewer,” things we really should have looked up in the AP Stylebook.

As an aside, proofing galleys of the newspaper can be an adventure, too, as any number of language gaffes have died in a puddle of red ink. Just be aware that there is a thin line between “inducted” and “indicted.” The same is true for “Hanover” and “hangover.”

I won’t say I’ve always liked hearing we’ve made a mistake, but I’ve always welcomed corrections, when they’re warranted. We want to get it right and use less – strike that – fewer words whenever possible.

Editor’s note: This article originally was written last year for the “Reflections” series collected by Jon Huddleston when he was president of the Virginia State Bar. A revised version was published in the Virginia Lawyer in October.

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