Legal (un) ease! – the house of linguistic horrors by Sr. Adv. Anish Dayal

“Originally published on 4-Apr-2012 in livemint in an online column ‘Lawyers Day Out’ by Anish Dayal now Senior Advocate Delhi High Court

What’s the chance that you have signed a legal submission to be presented before a Court that starts as “The Petitioner hereinabovenamed – Most Respectfully Sheweth”?! Or have seen a contract starting as “Now this Deed Witnesseth” and ending as “In Witness Whereof”?!! Or even still signed off a Power of Attorney drafted by the friendly neighbourhood lawyer stating “Now Know You All and These Presents Witness”? If often enough, then you are an old hand at ignoring these fossilized usages of the English language. If none, then welcome to the world of uneasy legalese in India. A world which steadfastly refuses to address the almost ridiculous use of outdated English phrases. A world which would have Shakespeare jiving in his grave for this continued use of archaic English in contemporary documents.

A quick google search on “Most Respectfully Sheweth” will throw up (not surprisingly) almost dozens of Indian legal drafts and petitions! A search on “Sheweth” however will (most informatively) throw up the following entry “sheweth is archaic third-person singular simple present indicative form of shew (i.e. show) like in 1611, King James Version of the Bible – Psalms 37:21, The wicked borroweth, and payeth not again: but the righteous sheweth mercy, and giveth”.

I rest my case.

What’s all this about? It’s funny, no doubt. It’s almost eccentric and therefore charming, maybe. But, in all honesty, this kind of continued usage speaks of hide-bound attitude of legal draftsmen towards drafts. There is no judicial or Parliamentary diktat for compulsory use of 16th century language. On the other hand, there is no jail either for simply saying “The Petitioner would like to submit as follows” or “this document is witnessed by the following“. While the archaic usage arises out of certain inertia amongst lawyers, draftsmen and sundry others, it also creates a wall of incomprehensibility for the layperson. If legal procedures were not intimidating enough, the language of the drafts would definitely make your head spin. Billings Learned Hand, a US Supreme Court Judge and judicial philosopher of the 19th century said in a speech: “there is something monstrous in commands couched in invented and unfamiliar language; an alien master is the worst of all. The language of the law must not be foreign to the ears of those who are to obey it

English as the language of the Courts and the law is something we inherited from the British. It was comfortable and appropriate, maybe, in the hands of the English bred lawyers of the last century. But with the democratization of India and percolation of law in each citizen’s life, it is imperative that at least outdated and alien uses of the language be booted out. A friend quite deftly remarked once: “Most lawyers learn their English in Courts”. English not being a natural and obvious language of choice for all Indians, is learnt extensively by many in the courts including through the use and repeated use of such outdated phrases. And these are perpetuated perhaps in the belief that using such heavy verbiage adds to the importance and gravity of what one is stating. I can’t but totally disagree.

And if outdated language was not enough, there is the free and liberal use of Latin phrases, which dot the landscape of legal documents. I remember when I once received a draft letter for revision, from a commercial client. It stated that “we have inter alia the following problems with your conduct”. Now let’s be fair – inter alia is a lovely Latin phrase – it means “amongst other things” and is effectively used to convey that there could be other issues and the list of items that follow are not exhaustive. Inter alia, is the Chairman Emeritus of the “Latin legal phrase club”! Clearly, its almost extensive legal usage had brought it to be used by commercial men too, almost inadvertently. There was reason enough to cringe, but reason enough to accept it too. Same would be the case for mala fide and bona fide (in bad faith and in good faith). Such is its acceptance that it is considered perfectly fine to use (though unacceptable) in its adverbial sense – “mala fidely” or “bona fidely”. Therefore a sentence like “the Respondent malafidely did not pay up the due amount” becomes rather commonplace.

Eric Partridge’s compendium “Usage and Abusage” (published by Penguin Books) confesses to be a “declaration of war on English misuse”. It lists Archaisms and their modern equivalents. Among them (or inter alia!!) are commonly used legal phrases like “hereof” (of this); “heretofore” (upto this time); “thereafter” (after that time); “thenceforth” (from that time onwards); “whereof” (of which); “wherefore” (for which reason); “whosoever” (whoever). While the use of such words may seem harmless and not really obsolete, they certainly deserve a relook in our modern plain English times. I always find it odd that while on one hand we have language being distorted to suit mobile texting and facebook posts, on the other there is this undying love for the obscure when it comes to formal communication.

Strangely, while it is places like India which should be heralding the use of plain English, considering how well we have adopted the Queen’s language and almost claimed it as our own now, it is in its places of origin that the language is undergoing a revolution. In the UK, there are numerous Plain English initiatives, both private and public. Local governments have laid out massive efforts to ensure that government communication is easy to understand and they even publish an annual list of words that should not be used. An instructive article “Plain English and legal advice are essential bedfellows” in the UK Law Society Gazette aptly observes: “Scientists, accountants, chess players, IT folk, musicians, politicians, entrepreneurs, the army, teenagers, five-year-olds, stockbrokers – all these and many more use a private language when communicating with each other. But for some reason, lawyers in particular have a reputation for bamboozling non-lawyers with obscure jargon, Latin, Norman French, schedule numbers and unexplained legislative references.” It is for this reason that the UK Law Society has been working towards plain English usage. Sometime back, the UK government implemented the Lord Woolf Commission reforms which included simplifying the language of pleadings and legal procedure. So “plaintiff” became “claimant” and “ex parte” became “applications without notice”. While the English trot along on a different path, we in India are quite happy to be still swimming (and sinking) in a mysterious ancient linguistic quagmire.

Any dekko at the horrors of use of the English language in law cannot be complete without mention of classic Courtroom bloomers. These nuggets happen when lawyers or judges with exemplary flourish try and use English in a manner unprecedented, unexplored and definitely unexpected! So sample an Honourable Judge of a Court very innocently telling a young female lawyer that he has heard all her arguments but if she has any other points – she need not file written submissions (of her arguments) but can satisfy him orally! Or the senior counsel rubbishing his esteemed opponent by shouting that he cannot “paint everyone with the same toothbrush”!! Yes, no doubt, the world of law without these precious linguistic horrors would be too plain and boring. But surely we need to “sheweth” the door to some of its demons. There would be still enough to rollick over.

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