Even lawyers do not like legalese

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Even lawyers do not like legal language according to this article.

I found the reference through a colleague who subscribes to Frankfurter Allgemeine Zeitung (thanks, Marisa!) and quoted this, from 31.05.2023:

Warum so kompliziert?

Von Sibylle Anderl

Wer Texte von Anwälten liest, ist hinterher selten schlauer. Die Motivation dahinter haben nun US-Forscher entschlüsselt.

Wie naiv die Vorstellung ist, menschliche Sprache diene stets dem möglichst reibungsfreien Austausch von Informationen zwischen Sender und Empfänger, illustriert wohl kaum etwas besser als die Ausdrucksweise von Juristen. Das Missverständnis, dem Leser solle im juristischen Schriftverkehr Verständnis ermöglicht werden, ist meist nach wenigen Worten vom Tisch. Die Gründe dafür sind gut erforscht: Der Trick liegt in der Kombination von Schachtelsätzen mit unüblichen Fachtermini. …

The article referred to appeared in PNAS: Even lawyers do not like legalese (paywall but I paid the $10). Here’s the abstract:

Across modern civilization, societal norms and rules are established and communicated largely in the form of written laws. Despite their prevalence and importance, legal documents have long been widely acknowledged to be difficult to understand for those who are required to comply with them (i.e., everyone). Why? Across two preregistered experiments, we evaluated five hypotheses for why lawyers write in a complex manner. Experiment 1 revealed that lawyers, like laypeople, were less able to recall and comprehend legal content drafted in a complex “legalese” register than content of equivalent meaning drafted in a simplified register. Experiment 2 revealed that lawyers rated simplified contracts as equally enforceable as legalese contracts, and rated simplified contracts as preferable to legalese contracts on several dimensions–including overall quality, appropriateness of style, and likelihood of being signed by a client. These results suggest that lawyers who write in a convoluted manner do so as a matter of convenience and tradition as opposed to an outright preference and that simplifying legal documents would be both tractable and beneficial for lawyers and nonlawyers alike.

The text types referred to are contracts and statutes (judgments and correspondence are my favourites though).

I wondered what the German Schachtelsätze referred to specifically. It seems the villain is the centre-embedded clause (“leading to long-distance syntactic dependencies”), which I hadn’t heard of but does seem similar to the convoluted German sentences.

The authors cited five hypotheses as to why lawyers write in a more complex manner than they themselves would prefer:

1. Curse of knowledge hypothesis – curse of knowledge is assuming other people know as much as you do and so failing to explain enough.

2. Copy-and-paste hypothesis – when you are putting a contract together, you use archaic clauses by copying them rather than amending or adapting them. I suppose that cut and paste predates word processing.

From Wikipedia:
The term “cut and paste” comes from the traditional practice in manuscript-editings whereby people would cut paragraphs from a page with scissors and paste them onto another page. This practice remained standard into the 1980s. Stationery stores sold “editing scissors” with blades long enough to cut an 8½”-wide page. The advent of photocopiers made the practice easier and more flexible.

I hadn’t heard of editing scissors, an exciting term.

3. In-Group signalling hypothesis: signalling to other lawyers that you’re part of the tribe, sounding more “lawyerly”.

4. It’s just business hypothesis: writing in a convoluted way to preserve your monopoly on legal services and justify your fees.

5. Complexity of information hypothesis: thinking that law is so complex that only complex language can do justice to it.

Most of these hypotheses are debunked in the article, but the copy-and-paste idea seems to stand up.It’s a problem for translators since you are translating for someone who doesn’t really understand what they wrote.

Here is an example of contract language in tradition legalese (left) and simpler language (right), highlighting the differences:

No participant saw those paired versions – the traditional and simpler versions did not match. There are details of how the study was recruited for and conducted. See the article for these. For example, in one experiment, 60% of participants identified as male, 38% as non-White. Lawyers were further categorized, for example 50% were coded as “fancy” lawyers, meaning that they either graduated from a top-25 law school according to US News and World report or worked at a top-200 law firm according to American Lawyer magazine.

Judicial Committee of the Privy Council

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Here is the Judicial Committee of the Privy Council in action in 2023. (Brick Court Chambers just call it The Privy Council).

privy council quashes a conviction for armed robbery in the bahamas based on a confession allegedly obtained by police oppression

A horrifying story.

The Privy Council has today quashed the conviction of Mr Vinson Ariste for armed robbery on the ground that the confession on which the conviction was based should never have been admitted into evidence and rendered the conviction unsafe.

Mr Ariste was 20 years old in 2010, when the robbery happened. He looked much better before his police confession than after. In 2012 he was sentenced to 15 years’ imprisonment on the basis of this confession. He appealed unsuccessfully to the Bahamas Court of Appeal, and thereafter to the Judicial Committee of the Privy Council, which has now quashed the conviction. He was in prison for 12 years.

Paul Bowen KC, Emma Mockford and Jagoda Klimowicz acted pro bono on behalf of the Appellant, instructed by Simons Muirhead Burton / the Death Penalty Project.

Here is the trial.

I notice that the appellant is Mr Vinson Ariste and the respondent is The King.

The Judicial Committee of the Privy Council (JCPC) is the court of final appeal for the UK overseas territories and Crown dependencies. It also serves those Commonwealth countries that have retained the appeal to His Majesty in Council or, in the case of republics, to the Judicial Committee. The judges are usually the justices of the Supreme Court. The Bahamas is an independent country, and member of the Commonwealth, which has decided to retain the Queen, now King Charles III, as head of state.

This leaves the question of what is the Privy Council itself? A question much asked when Penny Mordaunt appeared as a swordbearer at the coronation, in her capacity as Lord President of the Privy Council. Anyone who wants details of that can find it on the web.

United Kiltrunners e.V.

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United Kiltrunners e.V. is a charitable organization founded in Fürth in 2015. I can find no Scottish connection for the kilts. Possibly when they run for charity their kilts make them more noticeable.

One of their current projects is providing rickshaw rides for senior citizens. This is called Radeln ohne Alter – cycling whatever your age, although it is more like being transported. There are definitely some nice green areas around the confluence of the Rednitz and the Pegnitz. The Kiltrunners have eight e-rickshaws, which I suppose are electrically assisted.

Kiltrunners und Senioren on tour

 

Fürth Wiki entry

ChatGPT in the news for lawyers in Germany too

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Great excitement has been caused by the case reported in the New York Times (and elsewhere): Here’s What Happens When Your Lawyer Uses ChatGPT – a ten-page pleading submitted by a law firm for its client

cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, of course, Varghese v. China Southern Airlines, with its learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.”

But all these decisions had been invented by ChatGPT, which the lawyer had used to help him write the pleading (US brief).

There’s been some discussion about German lawyers using AI in the beck-community blog.

ChatGPT – Nutzungen durch Anwälte: gefährliche rechtliche Klippen sind zu umschiffen is an entry by Dr. Axel Spies. It refers to an article which I don’t have access to. The main conclusion is that it is a violation of the GDPR (German DSGVO) to enter a client’s name, for example, into ChatGPT. It’s hard to imagine this happening in Europe. But obviously, even in the USA the judge soon noticed the problem. I suppose ChatGPT could devise deceptive arguments, but once it invents facts, it should be obvious it is false.

One commenter on the blog entry actually asked ChatGPT what lawyers should think of a chatbot’s legal advice:

Das meint ChatGPT selbst zu dem Thema:

Als KI-Chatbot kann ich keine Rechtsberatung geben, aber ich kann Ihnen allgemeine Informationen zur Verfügung stellen. …

Zweitens müssen Rechtsanwälte sicherstellen, dass die von ChatGPT bereitgestellten Informationen korrekt und aktuell sind. Rechtsanwälte können sich nicht allein auf ChatGPT verlassen, um rechtliche Fragen zu beantworten, sondern müssen ihre Recherchen sorgfältig prüfen und zusätzliche Informationen sammeln, um eine vollständige und zuverlässige Antwort zu erhalten.

Peter Winslow reports on the US case in German on the beck-community blog too.

 

Von Amts wegen

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I was always pleased with myself when I recognized whether von Amts wegen was to be translated as ex officio or as of (the court’s) own motion.

But I never asked myself why. Recently, someone has asked why!

It seems that the term ex officio is used in more situations in German than in English. Here is the von Beseler/Jacobs-Wüstefeld dictionary of 1991 on von Amts wegen:

 

ex officio, by virtue of (one’s) office; because of one’s position; officially; proprio motu (Lat.); upon (of its) own motion; upon/of the court’s (own) motion; in ordinary

I think if someone does something by virtue of their office, ex officio works. But if a court comes to a decision, perhaps because it usually deliberates about it, then of its own motion is appropriate.

I looked up both expressions in the big Oxford English Dictionary, but they don’t add anything much to this.

I have one other excellent law dictionary but I don’t speak much Italian so I have never read the introduction, which I am sure is wonderful. I must scan it and run it through DeepL. It is by, Francesco de Franchis, Dizionario Giuridico English-Italian, 1984

He even says where ex officio would not be used in English. It is the bilingual law dictionary every translator wants, but it is in the wrong language.

Di ufficio; si dice, ad es., che il Lord Chancellor (v.) è un giudice della Court of Appeal ex officio, come pure il President della Chancery Division e il Lord Chief Justice. Ma si noti che quando si vuole alludere ad una iniziative di ufficio e ad una istanza di parte si parla, rispettivamente, di suo officio e di its own motion e di at the instance of the parties.

 

 

 

 

 

Basil Markesinis obituaries

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Sir Basil Markesinis died on 23 April 2023. There was an obituary in The Times today and in the Daily Telegraph two weeks ago. Telegraph:

The multilingual, cosmopolitan son of a former prime minister of Greece, Markesinis held, successively, the chairs of European Law and then Comparative Law at the University of Oxford, where he founded the Oxford Institute of European and Comparative Law.

Moving to London as Professor of Common and Civil Law at University College (UCL), he established the Institute of Global Law (“exceeded only by galactic”, observed one wag), holding the position simultaneously with a part-time chair at the University of Texas at Austin, where a legal colleague was quoted as describing him as “one active b—-r and as wise as a tree full of owls”.

It was quite an exciting read. If you have access to the Times or the Telegraph, you can see a photo of him wearing red trousers.  I only knew his comparative-law books on The German Law of Contract and The German Law of Torts, both several times revised and updated. I used them a lot but I regret I have never found time to read them at length. But I have long been looking forward to doing so.

Just last week the ITI German Reading Group was reading the novel “Corpus Delicti” by Juli Zeh, who under her real name is an honorary judge (proposed by the SPD) in the constitutional court of Brandenburg. I didn’t think the legal vocabulary in this science fiction novel would be a big problem for translators, but I noticed the term überholende Kausalität and wondered how I would translate it, if it were essential to the plot or to a legal text. And so I looked at Markesinis on the German law of torts. He refers to overtaking causes. An example is a medical practitioner who blinds a patient who would have subsequently become blind in any case. He queries whether overtaking is the less appropriate adjective than overtaken, which is something I was trying to get my own head around.

At all events, those two books are a really full and useful read, with plenty of references to German sources.

Twenty years of Transblawg

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I remembered that this blog started on 15 April 2003 so it is now over twenty years old.

First post, 15.04.2003

But looking older. There were other translation blogs and legal blogs (blawgs) at that time, although I think even then blogging was a bit old hat. When I was teaching legal translation at the IFA in Erlangen (which is 75 years old this year), I made my own material and I used to answer other translators’ questions on legal translation in a number of forums. In those days, people were not shy to show their ignorance online, as I think advertising one’s expertise on the internet was a newish thing. I certainly built my business on internet contacts, some of which even preceded the WWW and were made in Unix. I remember the noise of my first modem connection in the mid-90s with excitement.Today I follow a lot of blogs through Feedly, but really there is so much else to read online that I don’t usually feel like researching the background to new items. This blog is almost dead. But I do think it was a good idea to take a narrow focus, on legal translation rather than all kinds of translation.

What is on my radar today?

1. The German Federal Ministry of Justice has published a draft bill to introduce English-language commercial courts in Germany.

I’ve blogged on this issue on and off since 2010.

A number of Länder have introduced English-language courts, but this is the first federal initiative I can remember.

One problem with the bill is that appeal to the Federal Court of Justice (Bundesgerichtshof) is always to be possible, and that court may decide either in English or in German. This is unlikely to be attractive to international parties. Decisions at all levels are to be translated into and published in German.

I’d just like to say something about the ability of German judges to speak English. I recall hearing that some judges think their English is very good or are married to native speakers of English, and being very keen to be involved in an English-language case, possibly for reasons of prestige. In the only case I have heard a detailed report of (by a translator colleague who sat in on it), none of the lawyers or parties were native speakers of English, and they weren’t all Germans either.

At the end of a post in February 2014, I mentioned a case where the court was talking about the term Grundurteil in English. They decided to use the German word, a good idea. It does seem very strange for non-native speakers who have a good understanding of German law to talk in a foreign language about something intrinsically German.

It was a good idea to keep the German term, and I don’t think every judge in that position would have decided to do that. It’s part of the kind of technique that experienced translators and interpreters develop. Another part of that is deciding whether Dietl’s English version is good. (I always prefer Romain, but that doesn’t solve every problem). I got the impression that the judges did not have a critical approach to bilingual dictionaries. You don’t have to be a professional or particularly qualified translator to know these things, but it might help if someone in court does not just “speak good English”, whatever that means.

2. Here (again) is one of my photos of Dominic Raab, the second time and hopefully last that he was Lord Chancellor. October 2021.

How to translate numbers

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Victor Dewsbery has added a post in his blog Language Mystery going into great (and alas necessary) detail on millions, milliards, billions, trillions etc.

Translating numbers: 1. How much is a billion?

This history of the number systems has also created “false friends” for translators. A German “Billion” is not the same as an English “billion”. The words “Trillion” and “Quadrillion” are also misleading. And a German “Milliarde” is not a “milliard”.

This much I remember, and I am very grateful to Victor for setting it out so well. Take a look around for other topics while you’re there.

How to address a judge

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Via Joshua Rozenberg’s newsletter – the free version – at A Lawyer Writes – nowadays most judges can be addressed as “Judge” rather than “Sir” or “Madam”. I suppose this avoids gender problems and wonder if that was the reason for the change (announced on December 1 2022).

You should still address lay magistrates as Sir or Madam. If you are not sure which is appropriate, try Your Worship. That also works as a collective: Your Worships. Many magistrates will tell you they have been addressed as Your Holiness by confused defendants or those hoping for a more benign sentence.

The diagram What do I call a judge? makes it no clearer. I love the surnames used – “District Judge Kherallah” or “First-tier Tribunal Judge Curry”.

 

In response to a comment unexpectedly received, here is a longer quote from Rozenberg’s newsletter (i.e. virtually the whole thing):

How do you address a judge in court? Top judges are addressed as My Lord or My Lady. Most circuit judges are addressed as Your Honour. I was taught to address any High court master as Master. And until yesterday some of the most junior judges in England and Wales were simply called Sir or Madam.

 

That’s all gone. From now onwards, any judge in one of the following categories is to be addressed simply as Judge:

  • Masters
  • Upper Tribunal Judges
  • Judges of the Employment Appeal Tribunal
  • District Judges
  • District Judges (Magistrates Courts)
  • First-Tier Tribunal Judges
  • Employment Judges

Why? According to the lord chief justice and the senior president of tribunals,

the move away from “Sir or Madam” involves modern and simple terminology, reflecting the important judicial role whilst maintaining the necessary degree of respect.

We also hope this change in language will assist litigants-in-person involved in court and tribunal proceedings.

 

And, I suppose, it will reduces the risk of misgendering judges.

Calling a judge “Judge” may sound a bit disrespectful. But it’s how you address them formally when they’re not sitting in open court.

You should still address lay magistrates as Sir or Madam. If you are not sure which is appropriate, try Your Worship. That also works as a collective: Your Worships. Many magistrates will tell you they have been addressed as Your Holiness by confused defendants or those hoping for a more benign sentence.

And Sir or Madam remains appropriate for lay members of a tribunal. High Court registrars should be addressed as Registrar, which is inconsistent and a bit harder to say.

The changes apply only to the way in which judges are addressed in court or at tribunals. It does not affect judicial titles.

 

I have now found my copy of The Language of Advocacy by Keith Evans, one of my favourite books and not just about England and Wales. It is dated 1998 (but still in print), so before the House of Lords became the Supreme Court. Evans writes that “no appeal court Justice will ever take offence at being called simply ‘Judge’. It’s an illustration of the old truism that those who matter don#t care, and those who care don’t matter.”

Of course, now the judges of the Supreme Court are called justices, which might not alter the relevance of the above but did prompt the judges of the German Constitutional Court to wish to be called “justices” in English translations.

 

There is also a post on this on free movement.