Legalese sometimes difficult to manage

Whenever I watch a British murder mystery that includes court proceedings, I laugh at the outfits the judges and lawyers (or barristers, as they are called in Britain) wear.

They wear robes and odd-looking stiff wigs.

The “Discourse on Robes and Apparel,” written in 1625, detailed which court people should wear which robes. The robe color (black, violet, green and scarlet) changes depending on the type of case and even on the season.

And those wigs are astounding. A website described them: “Courtroom wigs are white, often handcrafted out of horsehair, and can cost thousands of pounds. Judges used to wear long, curled, full-bottom wigs until the 1780s, when they switched to smaller bench wigs. Barristers wear forensic wigs which consist of a frizzed crown with four rows of seven curls in the back.”

Well, clothing, at least, in the United States is closer to modern. And any non-natural hair is likely (or hopefully) an expensive hairpiece.

But U.S. courts and legal documents retain old-fashioned language. The phrase that made me wonder about legal language was

moral turpitude.

The online Legal Dictionary defines moral turpitude as “conduct that is believed to be contrary to community standards of honesty, good morals or justice.” If that sounds broad, it’s because it is.

The turpitude portion comes from a Latin word meaning vile or base.

Not surprisingly, among the

moral turpitude crimes are murder, rape, lewdness, kidnapping, prostitution and incest. Moral turpitude also includes bribery, fraud, counterfeiting, perjury. Also, arson, blackmail, burglary, extortion and forgery.

That certainly covers a lot. Is anything not a crime of moral turpitude? A few exist, including desertion, writing bad checks, trespassing, property damage, libel and rioting.

I think I will stay away from the term moral turpitude and instead use a specific crime.

Another legal term I’ve heard lately is bona fides. Without the s, the term bona fide means genuine and is pronounced bone-uh-fied. With the s, it means evidence of

good faith or proper credentials and is pronounced boneuh-FEE-days.

(Wow, after I typed that, I realized that the phrase is similar to a term we hear in reference to the Mafia. To make one’s bones means to kill someone to gain a reputation in a crime syndicate.)

Would more people understand if we used good faith instead of the Latin word? I think so.

Bryan Garner is a writer who has long advocated proper language usage. I have a hefty book of his, “Garner’s Modern English Usage.” But I recently learned that he’s also a lawyer and writes books and articles to help lawyers modernize their language.

Garner has a priority list of legal terms to ditch.

He says herein is too ambiguous. He says, “The problem with herein is that courts can’t agree on what it means. In this agreement? In this section? In this subsection? In this paragraph? In this subparagraph?”

Deem is another unneeded term. It means considered to be or believed to be. Just go ahead and say what is. Garner says, “You’ll almost never need to create a legal fiction.” Let’s hope all lawyers feel the same way.

I wasn’t familiar with this phrase: know all men by these presents. This vaguely translates as, “Hey, listen up.” Garner calls it “sexist deadwood.”

Said is a pretentious way of saying the. Garner says, “As a fancy-pants substitute for the (such as said agreement), it isn’t fine at all.”

Pursuant to is a phrase you’ll likely only find in legal papers. Garner says, “Instead of saying that something is required pursuant to the contract, say it’s required under the contract.”

Shall is a frequently used, inexact word. Garner quotes Judge Frank Easterbrook saying, “Shall is a notoriously slippery word that careful drafters avoid.”

Shall could mean a number of things: has a duty to, should, is, will and even may.

Saying you will do something is far different from saying you may do something. Saying you should do something is not the same was saying you will.

Garner’s advice on shall is emphatic: “The word is like a chameleon: It changes its hue sentence to sentence. Abjure it. Forswear it. You shan’t regret it.”

Such is a word that sounds odd in legal papers. I’m having trouble defining such.

Maybe a type or a class of something, or to a certain degree.

That woman’s illness was such a shame.

Any such handwriting is unacceptable.

In legal use, such means the thing I just mentioned.

This lease involves a three-bedroom house at 16 Cedar St. The tenants will pay $1200 per month to rent such.

Why not simply say the house or it, instead of such?

Same is similarly odd and can be replaced in the same way.

This lease involves a three-bedroom house at 16 Cedar St. The tenants will pay $1200 per month to rent same.

This article by Garner goes into far more detail on the words that lawyers should avoid: arkansasonline.com/31garner.

I also found a great example of a revised work contract that sounds infinitely more clear. You can read it in the Michigan Bar Journal by clicking arkansasonline.com/31eg.

And because I started the column with Britain, I will mention a term I heard on a British mystery from the late 1990s. In the U.S., we have lineups, when people stand side by side in a police station so that a crime victim or witness can try to identify a criminal.

In Britain, a lineup is called an identity parade. Who doesn’t love a parade?