Our Language Problem

January 24, 2017

If You See Something, Do Something!

As lawyers trained to worship at the altar of precedent, there are all kinds of bad habits we can pick up without even thinking about them. There of course are many legal principles we continue to follow today because they are critical underpinnings of our society that rightly have stood the test of time—the rule of law and the fundamentals of our Constitution, for example. There unfortunately also is a lot of legal terminology and procedure that we continue to use today for a very different reason: because it is just the way we always have done it. And breaking out of that default pattern is one of the easiest steps we all can take right now to improve access to justice.

I looked at him like he was crazy, and after an ensuing conversation that could have passed for an Abbott and Costello routine, I finally yelled at him incredulously and said I was talking about ME and who the heck* did he think I was talking about?!?!
I got a great lesson on this early in my legal career. As a newer associate at a large law firm, I had to have all my correspondence reviewed by the partner who was my supervisor, Mark Devane. I quickly learned he took the English language very seriously, so much so that he later gave up a successful career as a really good trial lawyer to concentrate on writing fiction.

Anyway, one of the letters in a stack I was running by him was a relatively routine letter to a witness following up on a couple of items requested during a deposition. I concluded the letter by asking the witness to contact the undersigned if he had any questions. Mark called me in to his office, looked at me very sternly, and asked me who is “the undersigned?” I looked at him like he was crazy, and after an ensuing conversation that could have passed for an Abbott and Costello routine, I finally yelled at him incredulously and said I was talking about ME and who the heck* did he think I was talking about?!?! He then very calmly asked why I didn’t just say “me.”

* not the actual word I used

I obviously had been put in my place, and very appropriately so. I was using that word because I thought at the time that was what we were supposed to do as lawyers. That was the last time I made that particular mistake, and while I have always tried to keep that lesson in mind, it is easy to fall into the habit of using longstanding legal jargon that is nonsensical to regular people.

I wasn’t hard wired this way—I was a journalism major in college—and I don’t think most of us lawyers came out of the womb wanting to confuse people. And yet, there are still a lot of those “undersigned” examples out there. We have it in our own power to fix this by trying to use plain language whenever possible in our work, and these self-inflicted situations are the easiest place to start.

There are even more examples where the source of our language problem lies in court rules, policies, procedures and forms. The Illinois Supreme Court, through its Commission on Access to Justice and the Civil Justice Division of the Administrative Office of the Illinois Courts, has made simplification a priority through standardized forms and other initiatives. The Circuit Court also is prioritizing this with the CBF through the Pro Se Advisory Committee and other work.

For other issues, the source of unnecessary complication is the Illinois General Assembly. While there is a lot more sensitivity to these issues in legislative drafting today, many of the laws that govern bread and butter legal issues were passed many years ago and are the source of some of the most arcane language anywhere.

A good example of this is the Forcible Entry and Detainer Act. That of course is the Act that governs evictions in Illinois. If you are a lawyer who has knowledge of that area of practice, you know what that means. But for the common person, including many if not most landlords and tenants covered by the Act, that sounds a lot more like you might be getting locked up rather than resolving an eviction case.

The common denominator in all of these instances is a significant and largely self-inflicted barrier to access to justice for regular people. While fixing these issues won’t obviate the need for proper funding for legal aid and other necessary access to justice initiatives, the system will be a lot more understandable for everyone and legal assistance, court processes and other resources will be much more efficient and effective as a result.

That is why the CBF has made simplification and related initiatives to make the justice system more user-friendly and accessible one of its core priorities. The CBF is playing an active leadership role in all of the initiatives mentioned above, including working with the CBA and others this year on a proposed bill to change the name of the Forcible Entry and Detainer Act to the Eviction Act. It is a small step for this Act, but hopefully a giant step symbolically for the need to prioritize similar initiatives going forward.

The specific activities necessary to make the legal system more understandable to regular people might sound trivial when taken one at a time. Taken collectively though, it is one of the easiest and most important things we can do to improve access to justice.

It will take some time, but we can do it, and we all have a role in making it happen. If you see something, say something, and do something. The CBF will be there with you.

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