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Thursday, February 11, 1999 Published at 02:49 GMT


Plain speaking in court at last

English law: follows a pompous tradition

By Mark Fisher

When I began my law studies at university in England, I knew from the outset that I'd chosen the wrong course. Partly because the subject matter was as dry as dust, learning the subject parrot-fashion, the purpose of which seemed to be to repress a student's imagination rather than stimulate it.

But also I hated the language that the law is couched in. Not because it's old-fashioned, as such, but because it's pompous.

Unbearably, maddeningly, mind-numbingly pompous.

'On a frolic'

The English legal system has never opted for a simple word where a tortuous phrase will do, has never said something in plain language if it can think up some complicated jargon that is completely meaningless until someone explains it.

Some obvious examples - the Latin 'res ipsa loquitur' is used to mean that something is self-evident, and the phrase 'on a frolic of his own' describes an employee acting without his employer's authority.

Multiply this kind of nonsense a thousand-fold, and the result is a sort of pidgin English that outsiders can't understand. So an ordinary person trying to get to grips with the legal background of his case is immediately defeated.


[ image: Not a pub but a 'public house']
Not a pub but a 'public house'
During a trial, he sometimes can't follow what on earth the judge or his lawyer are even talking about.

And the problem runs far deeper than that.

Perhaps encouraged by all this jargon, lawyers often speak and write in a painfully long-winded, obscure manner even when the jargon does not require this.

I once attended a trial where the opposing barristers seemed to be competing with each other to be as tedious and off-the-point as possible. A lot of it was just intellectual one-upmanship.

Instead of telling them to shut up and get on with it, the judge joined in as well. A case that could probably have been over within two days was strung out to five.

So the language of the law is not merely irritating. It wastes time, it wastes money, and often - I'm sure - it prevents justice being done as well.

If ordinary people understood more of what was being said about them and their case, they would find it easier to point out mistakes and make suggestions to their lawyer.

They would also, I suspect, have more respect for the law.

'Upper-class disdain for working-class habits'

For a while I worked as a criminal lawyer near London, defending teenagers accused of things like burglary and stealing cars.

The world those people lived in - defined above all by limited education - was inevitably very different from the world of the court and its lawyers.

But that difference was, it seemed to me, accentuated to the point of parody by the law's insistence on its own high-flown jargon and language.

One tiny example. A pub was always referred to in court as "a public house" - a term that no-one in the real world ever uses, and which conjures to my mind an image of upper-class disdain for disgusting working-class habits.

No wonder defendants tended to treat their court appearances as a joke.

The trial in the United States of O J Simpson, televised around the world, provided a refreshing contrast.

Modernisation 'pro bono publico'


[ image: American law: a refreshing change]
American law: a refreshing change
I knew something was odd about it as soon as I started watching, but couldn't at first put my finger on it. Then I realised. The lawyers were talking in an unaffected, normal sort of way.

None of the "with all due respect for my learned friend" and "I hear what you say", sort of guff that you still sometimes get in England.

The changes that are on the way will get rid of some of the Latin and old-fashioned English words on court forms. 'In camera' will become 'in private', 'plaintiff' will become 'claimant'.

Such modernisation is needed, and I hope it will encourage a change of culture that is also long overdue, away from an atmosphere in which lawyers so often seem to be talking down to anyone who isn't one of them.

This would be very much "pro bono publico'" as a lawyer might say - meaning, in the public interest.



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