The Language of the Law - Urban A.

Lavery
Chapter Notes by Uma Gopal*

About the Author:

Urban Augustin Lavery1 (1885-1959), was born on January 6, 1885 in Lavery,
Pennsylvania, United States. He was admitted to Illinois bar in 1910. He partnered
several law firms in Chicago from 1910-1933. He was the Law editor of West
Publishing Company, St. Paul2, from 1934-1939. He was also the managing editor of
the American Bar Association Journal from 1939-1942. In individual practice, he
specialized in Federal law matters, since 1942. From 1944 to 1946, he was the
assistant to Attorney General of the United States in anti-trust matters. He has been a
contributor to many legal journals. He is the author of standard law books in Federal
Administrative Law.

Summary

Urban A Lavery has written The Language of Law as an essay, that he handles in two
parts. In the first part the author brings forward the defects in the language used by
lawyer especially in its written form. In the second part, the author aims at addressing
the lack of proper methodology for Lawyers to refer to in the subject of Legal English
and gives simple solutions to correct it. The author laments the lack of any book or
guide that speaks of or imparts knowledge on the methods of writing Legal English,
whereas he says that there are so many books that cover the writing of poetry, prose,
scientific English and the like. Lavery cites many examples as cited by many
grammarians and legal experts, such as, William Shakespeare, who was sarcastic in
his observation about the style of lawyers language that had trickery; William Caxton3,
George Coode4, Sir William Blackstone5, Professor Hill of Harvard6, Sir Arthur
Quiller Coach7, John Stuart Mill8, who have made their observations regarding the
faulty language adopted by lawyers in legal writing. Lavery, in all modesty also offers
solutions to solve this problem thereof.

In the first part, the paper aims at focusing on the defects prevalent in the writing
style of Legal English adopted by lawyers. It tells of the inherent ability to confuse a

1
N. (2018). Urban Augustine Lavery. Prabook. World Encyclopaedia, Inc. Retrieved on May 31, 2018 from
https://prabook.com/web/urban_augustin.lavery/1075993
2
Katz, Wilber, G. (1939). The Law School Record. University of Chicago. 2 (2). pp 11. Retrieved on May 30,
2018, from https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1307&context=lsr
3
William Caxton, (born c. 1422, Kent, England—died 1491, London), the first English printer, who, as a
translator and publisher, exerted an important influence on English literature. Retrieved on May 30, 2018, from
https://www.britannica.com/biography/William-Caxton
4
Of the Inner Temple, Barrister-at-Law, Author of the book, On Legislative Expressions; or the Language of the
Written Law.
5
Sir William Blackstone, (born July 10, 1723, London, England—died February 14, 1780, Wallingford,
Oxfordshire), English jurist, whose Commentaries on the Laws of England, 4 vol. (1765–69), is the best-known
description of the doctrines of English law, Retrieved on May 30, 2018, from
https://www.britannica.com/biography/William-Blackstone
6
Greatest American rhetorician
7
English poet, novelist, and anthologist noted for his compilation of The Oxford Book of English Verse
1250–1900 (1900; revised 1939) and The Oxford Book of Ballads (1910), Retrieved on May 30, 2018 from
https://www.britannica.com/biography/Arthur-Thomas-Quiller-Couch
8
British economist and philosopher; ((1806-73)

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 1

layman due to its prolix wording, circumlocutory language with absurd, inconsistent,
antique words and phrases which makes one believe that lawyers are amateurs in
writing. It focuses on the lack of knowledge among lawyers in writing Legal English.
Prolixity or lengthy language is referred to as the maxima culpa9 of a lawyer. Lavery
cites as examples, the Constitution of New York, (Article 8, Section 10), Constitution
of Illinois, (Article 4, Section 34), Constitution of Oklahoma, (Article 1, Section 7),
with statutes having single sentences that have 462, 494 and 237 words respectively.
He also gives the example of the Bill of Foreclosure of a Railway Mortgage, where
the third paragraph contains a single sentence with 352 words, 16 main verbs and
many phrases and clauses; while the fourth paragraph contains 261 words. Lavery
also advises users of legal language to avoid jargons totally.

Lavery emphasizes that the sentence is the basic unit of expression and as a general
rule sentences should be short because short sentences are quickly and easily
understood than long sentences. A sentence, should contain only 15 words. Lavery
also laments that lawyers seldom consult grammar or composition books. Another
problem is the use of parentheses and jargons in the writing, that he says, must be
totally omitted, as advised by Sir Arthur Quiller Couch, a famous professor of English
Literature at Cambridge.

In the second part Lavery through the findings of grammarians or legal experts gives
solutions to improve legal language. He explains the difference between spoken and
written language and its usage. Lavery feels most of lawyers may be good at spoken
language and thus do not consider referring to grammar or composition books. Lavery
stresses on the use of proper adverbs, prepositions, conjunctions and other parts of
speech to be able to get the syntax of a sentence correctly. The author even criticizes
Jeremy Bentham, the greatest law reformer in England, whose writings in the latter
part of his career became difficult to read because of using prolix language. Lawyers
must cultivate writing skills irrespective of having good oratory skills, a truth that
some lawyers may find it difficult to accept. They must understand that writing is ex
parte10 communication. They must take out a leaf from the ancient Greeks who
mastered both the art of speaking and writing, having understood that both the skills
are distinct, separate and varied efforts are needed to master each. The elements of
grammar must be efficiently incorporated in both speaking and writing by a lawyer,
without indulging in any egoistic or egotistic attitude, to communicate successfully.
This is the route to being a successful lawyer.

Comprehension:

Question 1: In which sense does the lawyer remain the last resource of men and
women?

Answer 1: Lawyers are known to be masters of their words indulging in quiddities

and quillets, in other words their peculiarities (Shakespeare). They use a language that
confuses others; this has been the subject of many a proverb. They learn this as a part
of their training, to be able to do the work he is called upon to do. This has been an

9
Through my very great fault or acknowledgement of having done wrong
10
One -way or one of the involved parties are not present or not represented.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 2

object of discussion among people, some paying compliments while others casting
aspersions on their intent. Lavery says,
“And yet, no matter what else may be said of him, the lawyer in his field, even as a
physician and the priest in theirs - remain the last resource of other men and women.
When the wisdom of common men fails them, and disaster strikes, when the layman’s
brain is over worked till his mental fuse burns out, when the motorcar of ‘Business’
blows out its tires and piles up in ditches of insolvency, when the human derelict is
finally tossed upon the rocks by the stormy seas of life, then the lawyer is sent for.”

At this stage, the lawyers peculiarities are not ridiculed but are more than welcome.
His baffling chicanery is used on myriad complexities of human weakness and he is
called for to test out all his tricks in the trade to be able to handle the disaster at hand.
In other words, when everything fails and when the matter is legal by nature, it is a
lawyer who is the last resource of men and women.

Question 2: In what context does the author use the words egoism and egotism?

Answer 2: Lavery observes that the lawyer who may speak the Queen’s English
much better than his fellow human being, fails to achieve the same heights while
writing. When he uses his pen rather than his tongue, in expressing statues, judicial
opinions or legal documents, the lawyers end up using prolix and muddy language.

However, to discuss this subject with a lawyer is a sensitive one. If a person were to
teach a lawyer the true style of writing, that person will be marked down as a egoist or
an arrogant person, and additionally be labelled as a pedantic preacher.

Lavery says that the lawyers call their teachers who try to teach them the art of
communication, egoists, because they have a feeling of superiority or they are just
egotists or self seekers. This is why the subject of teaching the art of writing to a
lawyer must be carried out with a nice delicacy and a subtle sense of tact.

Question 3: Which source does the author give for us to know about the literary
style of the lawyers in the Elizabethan Age?

Answer 3: The Elizabethan Age (1558-1603), which refers to Queen Elizabeth’s first
reign, revolutionized many aspects of English life particularly Literature. It is also
known as the Shakespearean age.
To understand the literary style of lawyers during the Elizabethan Age , the author
refers to William Shakespeare as the source, and quotes a dialogue mouthed by
Hamlet to the grave-digger in the Shakespearean play Hamlet:
Why may not this be the skull of a lawyer? Who now be his
quiddities , his quillets, his cases, his tenures and his tricks?

From this, we can make out that even in the Elizabethan era, the lawyers used their
quirks and peculiarities, their trifling niceties and quibbles (trickery by using
confusing words), to express themselves to indicate their sharpness in their ability to
express the command over their words. However, this communication was in such a

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 3

manner that only a few men could understand it. Some of the lawyer’s language may
be considered either plain rude or curious. In other words, the literary style of lawyers
especially in writing was considered complicated, filled with prolixity and muddy
language with the use of legal jargons and peculiar words that was difficult for a
common man to understand.

Question 4: Which are the two worst examples of prolixity in legal English
pointed out by the author?

Answer 4: The first example is: Section 34 of Article 4 of the Constitution of Illinois,
where a single sentence has 494 words. This sentence is concerned with a complex
and difficult subject matter which would be hard to understand unless stated in the
simplest of terms. Even upon reading it over and over again, it is difficult to
understand the sentence.

The second example is the Constitution of Oklahoma. It is filled with such

long-winded, prolix sentences containing from 100 to 400 words. But the one that is
really long is the sentence found in Article 1, Section 7 of that Constitution where the
provisional clause to a sentence contains 237 words.

Such sentences can never be written or understood by a layman and therefore may be
considered the worst examples of prolixity in legal English. A sentence should have a
maximum of 15 words as it is the basic unit of expression and must be simple for
people to understand.

Question 5: In what way has the author structured his paper?

Answer 5: The author has structured his paper into two parts. The first part analyses
the problems and errors plausible in legal English as listed by many legal and
language experts. In the second part, he gives a few solutions to the problems in order
to make legal English simpler for the common man to understand.

Part 1: Problems and Errors in Legal Language: Lavery puts forward in his
paper, the analysis done by legal and language experts:

1. William Caxton (1490), who was an English printer and a language expert,
observed that legal writing was such that only a few men could understand. Statues
were written by clerks which often embarrassed Caxton as those laymen also wanted
Caxton to write some curious terms which were complex for a layman to understand.
Caxton’s writing style was different; he wrote in simple, clear terms. He also
observed that the Acts of Parliament that were passed in the seventh year of Henry
VII was very complicated. As an example Lavery mentions that the statue written to
define the penalty of a captain or soldier who ought to serve the King in intended wars
but who were not doing their duty, had complicated legal language. The sentence had
many complicated phrases and terms like: “Be it therefore ordained by the authority
of this present Parliament, that any captain….” Caxton concluded that the men in the
Parliament didn’t think before writing how many men will be able to understand this

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 4

kind of language.

2. Shakespeare sarcastically observes through the dialogue mouthed by Hamlet in his

play Hamlet :
Why may not this be the skull of a lawyer? Who now be his
quiddities , his quillets, his cases, his tenures and his tricks?
Does Shakespeare give compliments to the profession or is he being cynical; in fact it
was intended as a slur. He was particularly critical about the lawyer’s quiddities and
quillets, his cases, his tenures and his tricks, implying that lawyers use complex,
peculiar language just to engage in tricks to complicate and confuse the common man
and uses them cleverly to fight cases for their clients.

3. William Blackstone, who was an English jurist during the 18th century criticized
the writings of lawyers who wrote the Acts of Parliament, which he considered
overladen or too heavy. The lawyer’s writing style was also criticized by Sir Edward
Coke, who was an eminent English barrister, who added that these acts were often
written and corrected by men who had none or very little judgement in law.

4. George Coode, who was a member of the inner temple11, wrote a pamphlet called
the Legislative Expression that he presented in the Parliament in 1843, which Lavery
used in his work for the Illinois Constitutional Convention. Coode too criticized the
writing of lawyers calling it absurd, complicated, laced with antique words and
phrases, calling such people amateurs. He lamented the overuse of words like
‘nevertheless’, provided also’, ‘it shall and maybe lawful’, ’is hereby authorized,
empowered, required’, etc. He further observed that the Constitution of New York,
(Article 8, Section 10), the Constitution of Illinois, (Article 4, Section 34), the
Constitution of Oklahoma, (Article 1, Section 7), had statutes with single sentences
that had 462, 494 and 237 words respectively. He remarked that comparatively there
are altogether 91 words in the Ten Commandments! His emphasis and advise to the
lawyers is on the usage of short, simple and easy to understand sentences, even if it a
legal document or a statue.

5. Lavery states that in Branson’s Illinois Forms, there is a statute for lease which
has 18 word which could very well have been written in 8 words! Similarly in
Foster’s Federal Practice (5th Edition), there appears a form for the Bill of Foreclosure
of a Railway Mortgage, where the third paragraph contains a single sentence with 352
words, 16 main verbs and many phrases and clauses; while the fourth paragraph
contains 261 words. To this, an American grammarian, Goold Brown, said that if a
layman were to imitate the style, he would be declared ‘ridiculous’. Lavery thus
declares that prolixity or the length of the sentence is the maxima culpa of the
lawyers.

6. Summing up the first part of his paper Lavery emphasizes that a sentence being
the basic unit of expression should not have more than 15 words. He recalls that
Barrett Wendell who wrote his famous treatise on English composition, which was an
epoch-making book, stressed that lawyers should take care not to use prolix language

11
Is one of the four Inns of Court (professional associations for barristers and judges) in London.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 5

and criticized the appalling manner in which legal English is often written. He gives
the example of Goold Brown, who wrote in his book about King Henry VIII, who
caused a law to be passed by the British Parliament commanding that English
Grammar written by William Lily (English Renaissance scholar and classical
grammarian) should be adopted and taught everywhere. Further King Henry VIII was
instrumental in becoming the editor of King Henry’s Grammar, which gained
immense popularity in the days to come.

The Second Part: In the second part of the paper, Lavery offers suggestions to the
cure the ills of legal English. The writing of lawyers is considered dreary but says it
need not be so if properly presented. As a proof Lavery cites an admirable book on
rhetorics and style published by the Oxford University Press and written by two men
who compiled the Oxford English Dictionary. The book is called The King’s English,
which in the preface gives reasons for dreariness in writing and ways to avoid it. It
raises questions like: ‘How many lawyers consult a book on grammar and
composition?; How often do they stop to consider questions on syntax or use of
various parts of speech?’ Even though these things sound academic and serious, but if
considered while writing, it could lead to clear writing that will be easy to understand.

Lavery time and again emphasizes that prolixity is the chief fault of lawyers, as
remarked by Webster, who defines prolixity as extending to great lengths. He also
analyses the reasons for this which is something lawyers do not or would rather not
want to generally realise or understand. They are: (1) the inherent complexity of the
subject matter and (2) an impelling urge towards guarded and cautious language. But,
he, says that lawyers who are intellectually intelligent will refrain from doing so.

Lavery takes the example of Jeremy Bentham, who was the greatest reformer of law
in England, and is credited with influencing the writing of the modern acts of
Parliament. He became famous by publishing the ‘Fragment on Government’ in 1776
and he continued writing in volumes for sixty years until his death in 1832. Lavery
here remarks that Bentham initially wrote in simple legal language but as years went
by and he grew older, his writings became unreadable as his eccentricities grew until
he became unreadable, unless it was translated by his disciple Dumont. What
happened with Bentham at a later stage is what one sees in most writings of lawyers.
Lawyers write such lengthy pieces that include explanations that need not be there in
the first place at all.

John Stuart Mill, (British philosopher, political economist and civil servant), an
expert on rhetorics and the art of writing, also criticized Betham’s writings that he
engaged in, in the latter half of his career. He particularly criticized Bentham’s use of
parenthesis, something he observed a lawyer is very fond of.

Prof. Hill of Harvard, the greatest American rhetorician explained that lawyers
probably indulge in it because the subject matter of law is so complex and therefore
there is an urge to use guarded and cautious language. He criticized the lawyers
because they use circumlocution rather than straight, blunt speech. However, he
observed, that lawyers who are intelligent avoid such prolix language. He cautioned

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 6

the lawyers of this ill and encouraged them instead to have faith in the intelligence of
their hearers and readers.

Sir Arthur Quiller Couch, a famous professor of English Literature at Cambridge

University, through his treatise on the ‘Art of Writing’, cautioned the lawyers against
the use of jargons. He lamented that it was a regular language used in boards across
Governments, County Councils, Syndicates, Committees and Commercial Firms. He
believed that the two main vices of using jargons is that, first it uses circumlocution
and the second, it habitually uses vague, woolly and abstract nouns rather than
concrete nouns. He suggested a few points to the lawyers that they could use to keep a
check on the usage of jargons, which he categorically said was a complete NO.

Couch also observed that just because a lawyer’s spoken ability is good, it necessarily
does not mean that his written English is also good. This was laid down by Roget too,
the famous author of the ‘Thesaurus of English Words’, in his admirable introduction
in the book. The ancient Greeks knew the difference between the skills required for
speaking and writing and knew that these two arts were separate and distinct. Writing
is ex-parte communication,(one way communication), unlike speaking which is a two
way communication. Therefore, Lavery insists that lawyers must cultivate writing
skills irrespective of having good oratory skills, a truth that some lawyers may find it
difficult to accept because of them being egotists. Lavery in particular says that a
lawyer cannot afford to split his infinitives, dangle his participles, scatter his auxiliary
verbs and leave his adjective and relative pronoun to die out of starvation! In other
words, good writing skills which is a very important skill for a lawyer, can be
cultivated by persistence and efforts in learning good language skills. Many eminent
language and literature experts observed that bad English and bad grammar is
sometimes found in good company.

Question 6: Which points of grammar and usage does the author insist the
lawyers who write their briefs ought to be particular about?

Answer 6: The lawyers must be particular about the questions of syntax or the
construction of sentences and the proper usage of adverbs, prepositions, conjunctions,
participles, infinitives, relative pronouns and all other parts of speech. These are more
important than piled-up citations of cases.

Question 7: Which characteristic faults of the lawyers’ English has the author
pointed out?

Answer 7: Lavery points out that prolixity is the chief characteristic fault of lawyers,
as remarked by Webster, an American lexicographer and language reformer as well as
Prof. Hill of Harvard, the greatest American rhetorician. Lawyers probably indulge in
it because the subject matter of law is so complex and therefore there is an urge to be
use guarded and cautious language. However, lawyers who are intelligent will avoid
prolix language. This was seen in the writings of Jeremy Bentham who was the
greatest reformer of the English law and wrote with precision and logic in the first
half of his career but in the latter half he lost his style of writing and indulged in
unreadable prolix writing.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 7

Question 8: Why is written English different from Spoken English?

Answer 8: Writing is ex-parte communication, unlike speaking which is a two way

communication. While speaking, since the speaker and the listener are both present at
the same time, even if it’s a hit and miss affair, the meaning can be conveyed by a
glance, a gesture, tone, voice control or even a pause, that is, non verbal
communication. If spoken words are converted into its written form, it may appear
forceful, disconnected, redundant and even ungrammatical when printed. Spoken
words are different from written words as a man is from his photograph; indeed the
writing is after all but a picture for a word. In spoken language the use of rhetorics
and oratory skills dominate and it is instinctive whereas written communications is
highly artificial, with no question of instantaneous question and reply, if ever a doubt
has to cleared. Spoken words cannot be smothered out easily and if it is, a
clarification can be sought again and again till the point is made.

For written communication, each of the written word must pass before the reader’s
eye and each must make its point or fail, for there is no chance to seek clarification or
to change it. The author says that a document is a mongrel, which has speech for its
father, and writing for its mother, and it exhibits all vices, and none of the virtues of
its parents! Such a document will be an utter failure especially in writing legal English.
Lawyers must cultivate writing skills irrespective of having good oratory skills, a
truth that some lawyers may find it difficult to accept. A lawyer cannot afford to split
his infinitives, dangle his participles, scatter his auxiliary verbs and leave his adjective
and relative pronoun die out of starvation, which is more starkly visible in written
legal English. A lawyer will then form an uninviting and hard to penetrate rows upon
rows of barbed wire, tangled deep with weeds, which used to stand before the
outposts of Verdun12. A lawyer will thus create a boundary wall between him and the
common man whom he needs to serve and perform his duties for. Will such a lawyer
be called for by a layman when everything fails and disaster is at hand as a last resort?
Certainly not.

Reference:

1. Bhatnagar. R.P. (2016). . Law and Language. “In the Court”. ISBN:
978-93-5138-012-2. Bangalore. M.P.P House. pp. 33-48.
2. Lavery, Urban A., (1921).“The Language of the Law: Defects in the Written
Style of Lawyers, Some Illustrations, the Reasons Therefore, and Certain
Suggestions as to Improvement”, 7 American Bar Association Journal 277.
3. Lavery, Urban A.(May, 1922). “The Language of Law“.American Bar
Association Journal. 8(5) pp 269 - 274. Retrieved on February 6, 2018 from
http://www.jstor.org/stable/25710870

Battle of Verdun: fought from February 21 to December 18, 1916 which was the largest and longest battle of
12

WWI. Barbed wires were used to stop the enemy advance and for protection.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 8