yndigo

The plain trend in legal language

Theater critics have complained that many contemporary stagers of Shakespeare take the Bard too seriously. His plays are bawdy and bloody and funny but to many theater-goers today, they are just stuffy. Some of this comes, I think, from the fact that, as imitators, we revere the original so much that we spend our energy imitating rather than creating something fresh for today’s audiences.

For good or bad, translators are imitators, too. Our ability to imitate the language of lawyers, doctors, engineers, etc., and to employ each industry’s terminology and language conventions is crucial to our job. But as each industry continues to develop and change, inevitably we find that the target language is a moving target.

One major problem with being an imitator is that we’re often just one step behind the latest trends. The trend in legal writing is plain language, or perhaps I should say “push” rather than “trend” because, if you follow Wayne Schiess’s informative blog, many attorneys are slow to follow. Mr. Schiess is the Director of Legal Writing at UT Texas and strives to lead lawyers and law students away from legalese with its archaisms and potential for confusion, toward clear English.

In a recent post, Wayne Schiess asks readers what legal words they would like to see banished. Replies included “witnesseth,” “heretofore,” “instant” (as in the instant case), “said,” “same,” “shall.” With regard to this last term, Bryan A. Garner, in Exercise 35 of his Legal Writing in Plain English, tells students quite starkly to “delete every shall.” Adam Freedman, in his blog, “Party of the First Part,” attacks legalese with a bit of humor, asking, “Why do they use so much Latin when so few of their clients are Ancient Romans? Is it a conspiracy?”

The Federal Government has already seen a need for clearer communication and has recently passed the Plain Language in Government Communications Act of 2008. Agencies are now required to adhere to the Federal Plain Language Guidelines or the SEC’s Plain English Handbook.

Now, a legal translator could rightly claim that these archaisms exist in other languages, too — and are often more entrenched than in our own — so translating archaic legalese with commonly understood contemporary words rather than their older British equivalents would be to mistranslate.

This largely depends on your theory of translation and whether it guides you to translate just the meaning or whether the parallel formality and register should be included. “Let’s make it as hard to understand for us as it is for them” proponents of this latter theory may claim. They would also advocate retaining all the latinisms of the source.

It should be pointed out that other countries are pushing for simplification in legal and administrative language, too. For example, a Belgian association of magistrates published, “Dire le droit et être compris,” in which they suggest newer terms, among them: “Le tribunal de céans” should be shortened to “Le tribunal”; “Aux fins d’entendre désigner un expert” should become “Afin que le tribunal désigne un expert” or “afin qu’un expert soit désigné.” Governmental initiatives of many other countries are contained here.

Of course, literary translators would appear to have come to terms with this issue. They modernize the canon for each generation of readers (maybe for lack of work, mind you ; ), somehow feeling a responsibility to keep the language fresh. (All the same, this practice has made me wonder why foreign readers should benefit from this and not the author’s own countrymen, for I can enjoy Homer in 20th century English while Greek school children are likely struggling through language from 8th century B.C.)

For legal translators, it is still not necessarily wrong to use legalese in translation, especially because many attorneys will find it plenty familiar, but if we don’t watch the trends, our language may start to look, well, olde.