Legal Language.

Peter M. Tiersma University of Chicago Press 5801 S. Ellis Ave. Chicago, IL 60637 298 pp., $26

When I agreed to write a review of Legal Language by Peter M. Tiersma, a professor at Loyola Law School in Los Angeles and author of two earlier books on linguistics, I thought perhaps I could read a little bit at the beginning, a little bit in the middle, and a little bit at the end and capture enough of the flavor of the work to write a believable review. But I was wrong.

Instead, I picked up the book and read and read and read some more. Admittedly, I didn't read it straight through, thus precluding one of those be-prepared-to-stay-up-late reviews seen on the back of the prototypical beach book.

A beach book this is not. But to students of the language of the law, the book provides a wealth of information about the origins of legal language, its linguistic nature, and ways to fix it in documents or in court. Inasmuch as all lawyers should fancy themselves "students of the language," the book deserves "must read" status.

The book is organized in four parts: Origins, The Nature of Legal Language, In the Courtroom, and Reforming the Language of the Law.

The book's greatest strength lies in the depth and breadth of Tiersma's historical research. From page one, I became entranced in the ways our legal language developed. And as a teacher of effective legal writing, I noticed immediately the professor's own clear and memorable style:

   The history of legal English begins in ancient Britain and develops as
   successive waves of invaders--Anglo-Saxons, Scandinavians, Norman
   French--left their marks not only on the English language in general, but
   on legal English in particular. The conversion to Christianity, the
   development of a centralized system of justice, the rise of a legal
   profession, and the spread of writing and printing were also enormously
   influential. Eventually, as the invaded became the invaders, the English
   propagated their legal system and its peculiar language across the globe.

The author describes how the ancient Celts would sing legal sayings and maxims, often using poets as the guardians of this oral tradition. An Irish legend has it that a king stripped the poets of their power as judges because of their obscure language. The early invading Romans had little effect on legal language, and Latin failed to gain a foothold among the Britons. Latin constructions would have to await the arrival of the Roman Christians.

In early medieval society, words were ascribed a talismanic power, and literalness ruled the day. The author relates the connection between the words judgment and ordeal. The ordeal was used in various forms to resolve disputes. To illustrate the point, the author reminds us of the legend of Tristan and Isolde.

Under the influence of a love potion, Tristan, a knight serving King Mark of Cornwall, fell in love with lsolde, the king's wife. Suspicious, the king ordered Isolde to undergo a trial by ordeal--holding a white-hot metal iron in her bare hands--to determine her fidelity. By prearrangement, Tristan dressed as a pilgrim and waited for Isolde's boat to arrive at the place of trial. Isolde asked the pilgrim to carry her to the beach, and he stumbles so that they end up in each other's arms.

The moment of truth arrives: Isolde grasps the hot iron and declares, "I have never been in any man's arms but the king and, of course, this pilgrim who carried me to the beach." Her hands are unblemished, for she has told the truth.

In modern parlance, her declaration was "legally accurate."

Then, English, French, and Latin battled for primacy in legal language, with a branch of French emerging as the winner for hundreds of years.

The balance of part one takes us through the reappearance of English in England's legal language, and its exportation to commonwealth countries throughout the world. It landed, of course, in America, where some early efforts sought to repel it.

A committee in Virginia, with an esteemed member named Thomas Jefferson, considered abandoning the entirety of English law and creating a new system from scratch. The committee rejected this approach, fearing that a new system with new words and language would create disputes, not resolve them. Jefferson agreed but encouraged revising the style of statutes,

   ... which from their verbosity, their endless tautologies, their
   involutions of case within case, and parenthesis within parenthesis, and
   their multiplied efforts at certainty by saids and aforesaids, by ors and
   by ands ... do really render them more perplexed and incomprehensible, not
   only to common readers, but to lawyers themselves.

Reference book

Perhaps only serious students of the language will read this work straight through. But all practicing lawyers, especially trial lawyers, will profit from the work as a reference book. Of particular interest are parts three and four.

The author includes discussion, examplies, and copious research on the language that appears in pleadings, direct examination and cross-examination, and jury instructions. The book is distinctly up to date, as it includes references to linguistic exchanges in the O.J. Simpson case.

Language in jury instructions recurs in part four on reforming the language. Tiersma cites Justice Felix Frankfurter's suggestion that a judge's instructions are "abracadabra" and Judge Jerome Frank's remark that the judge's words to the jury "might as well be spoken in a foreign language--that, indeed, for all the jury's understanding of them, they are spoken in a foreign language."

These are not, of course, words of comfort to any trial lawyer who makes a quick trip to the form book in search of jury instructions. Photocopying instructions, scanning them into the word-processing system, and cutting and pasting them into jury instructions submitted to the judge ensure that the foggy language of old survives to confuse another generation of jurors. Those who take that approach, alas, miss the golden opportunity to fashion understandable instructions that will guide the jury in its deliberations. Perhaps a judge would select the instructions most likely to be understood by the jury.

A book review without criticism is immediately suspect. So herewith (dare I say it?) some critical observations: Part two includes a chapter "Talking Like a Lawyer." After a few pages, it becomes apparent that the chapter has little to do with talking and everything to do with writing. A chapter truly devoted to oral language might have added to the book but also would have lengthened it.

As a final critical observation, the type size is too small. I may be advancing in age, but there's nothing wrong with my reading glasses. Even with them, I had to squint to decipher indented quotes and endnotes.

All in all, Legal Language is another fine addition to a growing list of titles that should grace the shelves of every lawyer. After all, as lawyers, we do two things for a living: We talk and we write. We ought to do a better job of both.

C. Edward Good is counsel and writer-in-residence at Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C.