Open Eye: Changing the language of law

The irritating legal practice of speaking in Latin code is on its way out, reports Gary Slapper, Director of the OU Law Programme

When I mentioned to a legal colleague that I was going to a local radio station to speak about the irritations of legal language, his reply was, "Good for you - is that something you have done heretofore?"

For centuries, lawyers have annoyed people by using obscure phrases, Latin and archaic words. This has certainly fuelled the observation of George Bernard Shaw that all professions are conspiracies against lay people.

The phenomenon is not an entirely recent development. Cicero was berating lawyers for using outdated Latin in 63 BC. In his Pro Murena he also attacks lawyers for thinking too much of themselves, and for their quibbling and verbosity.

Since April, revolutionary change has swept through the court corridors as the reforms of Lord Woolf have been introduced. The reforms have been designed to ensure that the process of civil justice is carried out more expeditiously and transparently than in earlier times. No longer, it is hoped, could we have a case like Jarndyce v Jarndyce as described by Dickens in Bleak House. In that case, arguments went on for so many years and became so embroiled with legal complexities that no-one alive knew accurately what was in dispute. Scores of people had become entwined in the case and "the little plaintiff or defendant, who was promised a new rocking horse when Jarndyce v Jarndyce should be settled, has grown up, possessed himself of a new horse, and trotted away into the other world."

Among the new rules we have are those which now insist that all the old esoteric or Latin phrases used by lawyers and judges are replaced with plain English equivalents. Thus, a "writ" is now a "claim", a "plaintiff" is now a "claimant", and a "guardian ad litem" is a "litigator's friend".

How will the lawyers cope with all this change? For many of the more seasoned practitioners the radical changes required in practice seem to have been a considerable challenge. The morning the new rules came into effect in April, one of the first barristers on his feet in the High Court was swiftly knocked back by the presiding judge. "My Lord," offered the experienced counsel, "I appear for the plaintiff in this action." The withering judicial riposte was instant: "No you don't, you appear for the claimant."

The new Plain English forms also appear to have foxed many old-hand solicitors. Bristol County Court announced that in the week following the introduction of the new forms, 75 per cent of documentation received from solicitors was returned as the papers were improperly completed or relied on old- style forms. In the same week, the court in Manchester said "almost all" of the forms it received from solicitors had to be sent directly back to the lawyers. The court would normally expect from lawyers about 550 claim forms but received only 74. Much consternation, apparently, back at the Wig and Pen Club.

Latin has already been once banned from the law courts only to be promptly re-introduced when lawyers could no longer tolerate the withdrawal symptoms. An Act passed by Parliament in 1730 abolished law-Latin in legal proceedings.

Lawyers then faced the challenge of rendering certain Latin phrases into English - nisi prius (unless before), quaere impedit (wherefore he hinders), caveat emptor (let the buyer beware) and habeas corpus (you must have the body) all caused great difficulty. According to the eighteenth-century legal writer William Blackstone, these phrases were "not capable of an English dress with any degree of seriousness". So, in 1732 another Act was passed once again permitting lawyers to attack and parry in a classical language.

Verbosity is a fault often alleged against lawyers. Why does legal language often resort to pairs of words when, plainly, one would suffice? Why do we have phrases like "each and every", "last will and testament" and "null and void"?

There are various explanations. In medieval Britain law was conducted in three languages (Anglo-Saxon, Norman French, and Latin) and phrases were sometimes aggregations of words lifted from the different traditions.

Lawyers were also often paid by the page, so it did not hurt them to be a little fuller in expression that might be strictly necessary.

The additional embroidery of a Latin phrase could also lend an authoritative air to an argument: "If that phrase hadn't been in Latin," said Lord Shaw in a case in 1923, "nobody would have called it a principle."