While reading the Big Friendly Giant (BFG) to my son at bedtime last week, a novel by Roald Dahl from 1982, it occurred to me just how much our legal fraternity still has to learn even from children’s books as simple as the BFG. When the BFG uses words like “Swalloping slutch” and “Disgusterous”, “scrumdiddlyumtious” and “whopps-whiffling” my son, even at his young age of 3; knows exactly what the giant means without googling the words or using a Roald Dahl vocabulary sheet. Why? Because of how Roald Dahl writes his books. He writes so simply that he can use words that don’t even exist and a small child can still follow the meanings and context.
So why my colleagues and fellow practitioner’s, in a country such as ours; where the Literacy Stats of South Africa 2017 found that 5,6 million members of our population have a level of education below grade 7. Where we ranked 56th out of 61 countries for literacy health by a study conducted by the Central Connecticut State University for Global literacy health. Where 3 out of 10 grade 4 learners are unable to read at an appropriate level – why are we still using words day to day like “prima facie”, “abinitio”, “abeyance”, “ex parte”, “indigent”, “restitution”.. need I go on?… in documents and court actions where we are representing these same individuals?
Now hats off to companies like Smith Tabata Buchanan Boyes (STBB) and the Law Society of South Africa for providing free online glossaries for legal jargon on their websites, but in a country where only 51% of our population have access to the internet on their mobile phones, is that really enough?
Are we so uptight, insecure and traditional that our courts and our companies are hanging onto these latin phrases, complicated terms and explanations as a way of protecting our industry from an imaginary enemy? What harm would it do if we used laymen’s terms in court documents, pleadings and general emails, so that our clients could understand their own cases and communication from us to them or third parties.
Can you not take the 160-page document you have been drafting for a client and say the same thing in 20 pages if you tried, 2 if you were very competitive? I already know your reactions, “how do we cover all loopholes and protect our clients every interest if we don’t have the additional 140 pages of clauses?” The same clauses that I risk saying are probably ambiguous in nature, have been handed down by generations of lawyers before you, might even be the cause of future litigation due to contradiction in terms or interpretation and that you might not even completely understand yourselves.
I dare say that we are using these terms to prove something to each other and that it has nothing to do with the best interests of our clients and protecting the traditions and history of the law. I think we use these terms to intimidate opposing parties, to portray a pretense of latin fluency or expert level of education. If we are honest we use these terms and unnecessary clauses out of fear. We use these terms not to make the law more accessible and less threatening to our clients but instead to keep a wall of steel between ourselves and the general population, to make sure laymen feel that the law is literally another language that they need us to navigate for them. Is this not just another version of basic oppression at its very root?
Is it too far out to imagine our generation of lawyers being the change we want to see for our clients and our fraternity. Can I challenge you into asking your directors this week if you might simplify the drafting of a document for the sake of a client’s better understanding? Can I provoke you into responding to an email from an opposing party without using terms such as “inadvertently”, “forthwith”, “hereby” or “endeavor to”? It might not make a viral difference immediately, but I can promise you it will make a difference to the client you are representing this week.
This article was originally published on March 25, 2019 on Delia McArthur''s website
Delia McArthur is an admitted attorney with over a decade of legal service experience. She was previously CEO of Independent African Mediation for 5 Years and is currently Chief Legal Executive of Law For All’s diverse legal team of over 350 legally qualified professionals.
Delia is passionate about people. Her focus is on assisting individuals, organizations and leaders to find their “potential exponential” to suit the needs of their future clients, employees and managers.
She does this by exposing them to practical tools and skills to encourage them to build resilient teams with innovative, solution-orientated business cultures.