The noted linguist Steven Pinker, in an interview with Slate.com, has some good thoughts about convoluted legal prose, or legalese:
[L]egalese can…be made less impenetrable. In fact, there’s a movement in the legal profession to reduce legalese to the minimum necessary, because a lot of legalese doesn’t serve that purpose of anticipating an uncooperative reader. For example, “the party of the first part” actually serves no purpose whatsoever. It could be removed from every single legal document, and replaced it with “Jones” or whatever, and it would not have any bearing on the legal interpretation but it would make the document a heck of a lot easier to read. A lot of legalese is just professional bad bits carried over from one generation of lawyers to another with no good reason.
Improving legalese is actually a high priority because there’s so much waste and suffering that results from impenetrable legalese: People don’t understand what their rights are because they don’t understand a contract or they waste money hiring expensive lawyers to decipher contracts for them. I think there’s a high moral value in reducing legalese to the bare minimum.
As an aside, I’d quibble with the point about hiring expensive lawyers to decipher contracts. While I decipher for my clients when needed, the primary reason to hire me is to help the client think through the implications of what’s on the page, even if it’s easily understandable, and to consider alternative provisions that aren’t on the page. To the extent Pinker is implying that calling parties by their real names obviates the need for legal guidance before entering into contracts, that’s overstating things.
But I wholly endorse the goal of making legal writing easier to understand and support initiatives, like the SEC’s Plain English rules, that mandate clearer disclosure. Still, many contracts drafted today are quite difficult to parse for the layperson, and it’s only partially because of antiquated language, such as “party of the first part,” that appeared in contracts 100 years ago. I think that some attorneys affirmatively seek to use difficult language and convoluted provisions that only they can understand and explain, cultivating an oracle-genius image of themselves for their clients. This style isn’t limited to attorneys – think of investment gurus (Bernie Madoff used it to convince investors of his wizardry, though it’s not just limited to fraudsters) and doctors who use jargon and resent it when their patients try to self-educate with WebMD.
Hopefully, over time, society’s understanding of what it means to be an expert will become more nuanced, with a recognition that communication via jargon is not indicative of true proficiency in a field.