by Eva van Loon

It has finally happened: Englese has corrupted Legalese so far that an American judge is burned up over lawyers’ having their way with poor old English.

U.S. Bankruptcy Judge Robert Kressel pronounces his orders in perfectly good English in his courtroom—only, apparently, to have dumb lawyers write ‘em up all wrong. So His Honor sent a memo to the whole bankruptcy bar to straighten up and fly right, grammatically as well as legally. Some of this stuff, he thinks, they should have learned in grade school.

You wouldn’t think it would be necessary to tell lawyers “to use regular grammatical English as much as possible’ since English is still officially the language of the land down there He also wants lawyers to stop paraphrasing the statutes, the actual laws, because they risk changing the meaning (because obviously they don’t know what the hell they’re doing with the language, get it?). Then he gets down to the nitty gritty.

“Guideline No. 6 – Capitalization
“Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized. We love this one: “Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: hereby, herein, in and for, subject, that certain, now, that, undersigned, immediately, heretofore entered in this case, be, and hereby is–the list goes on and on. Compare the meaning of Now, therefore, it may be and is hereby ordered that: with It is ordered.”

(You might wonder, as I did when first reading the hallowed legal halls of America, what the heck a movant is. Aside from eleven points in Scrabble, it’s what we Canucks more sensibly call an applicant—nothing to do with moving your stuff.)

You might think, since there are only three tiny words in English that work as articles, that lawyers, who have swallowed so many cases and laws and regulations, could remember how to use those little words. Apparently not: “Guideline No. 7 – Use of articles. Lawyers apparently disfavor articles, both definite and indefinite. Use the articles the, a, and an as appropriate. Write the way you would speak. So, the debtor, not debtor; the trustee, not trustee.”
I love this one: “Guideline No. 16 – Plurals and Possessives
Keep plurals and possessives straight and consistent. Know when to use debtors (plural), debtor’s (singular possessive), and debtors’ (plural possessive). Make sure the verb matches the subject of the sentence.” This poor judge is probably a Boomer, wondering what these lawyers were doing in Grade Five, which is the level at which he likely learned this stuff. Little does he know that most people, Grade Five graduates or post-graduates, don’t know how to do this anymore.

His Honor’s next beef is with itses and bitses. “Guideline No. 17 – Its and It’s
Please use the possessive noun “its” and the contraction “it’s” correctly. I’m with him on this one. Apostrophe abuse could be a sign that civilisation is about to collapse.

Seriously, English is staggering into its very own version of Alzheimer’s. It apparently can’t remember how many, whose, or how to walk a parallel structure. It staggers through our lives like an unlettered drunk and pops colons and apostrophes and stuffs punctuation pills wherever there’s an orifice in the language. Even CBC’s radio voices now stutter and stumble their way so embarrassingly through semi-sentences that old farts like me have to invent some protective gear—I say “Bzzt” every time I hear a Really Big Error. It affords me meagre comfort. It’s a good thing apostrophes and colons don’t appear on radio, though—or you’d swear there’s a swarm of bees around me every time the radio is on.

The notion of Englese is some comfort. “Language is a living thing,” is a truism most often used by people unsure of how to use their own. It both excuses ignorance and to some extent explains why we fail to keep to the rules—it’s because we speak what we hear. And so the language morphs into a new self, a snake shedding an outgrown skin.

What the law will eventually do about the underground fire in its language is anybody’s guess. Conservative as the profession is, it will probably imitate Judge Kressel for another fifty years, insisting lawyers learn English, a prescription whose novelty will soon wear thin, and won’t work. Eventually only an expert in the new language will be able to shift legal language from good old English—R.I.P.—to clear, explicit Englese.

(I’ve often wondered whether we Canadians screw up French as badly as we do English…does anybody know?)