The problem in trying to access the legal system when a person doesn’t understand starts even before they set foot in court. (Photo: REUTERS/Andy Clark)
If you have ever been to court, you have most likely encountered a new spoken language: “legalese”, favoured by lawyers, judges and those who work within our legal system.
The Canadian Bar Association, the largest association for lawyers in Canada, describes legalese as “…a style of writing used by lawyers that is incomprehensible to ordinary readers.”
Legalese is a problematic way of writing and speaking, because it's a convoluted way of communicating that makes little sense to anyone, with the exception of lawyers and judges. An example is the phrase “pursuant to,” which in plain English simply means “following.”
This is a big problem. Legalese affects everyone who has to deal with the legal system and most of us don’t understand it. When people appear in small claims court or are getting a divorce, legalese is thrown at them. That, in turn, makes it difficult for them to participate in the legal system, because they just don’t speak its language.
The problem in trying to access the legal system when a person doesn’t understand legalese starts even before he or she steps foot in court.
When people go to a lawyer, the lawyer is first forced to translate legalese into everyday language in order to help them understand their case, wasting time on clarifying the law instead of working on the case.
Even when people try to get legal help through legal advocacy groups, because they can’t afford a lawyer, they face difficulties. For example, low-income Ontarians can apply for funding to get a lawyer through Legal Aid Ontario, a non-profit corporation that provides help through a “legal aid certificate.”
The certificate allows them to get funding to hire a lawyer for a limited amount of hours but before they qualify, people have to prove they are legally and financially eligible. This can be difficult to prove, as they are forced to deal with legalese-filled documents.
If people don’t qualify for legal help and they can’t afford a lawyer, they are then forced to go it alone.
"It is misery. I've seen it. I have had people hire me on a limited-scope basis just to coach them to represent themselves. And I've talked to them later and it is misery, you know. Lawyers do add value," says Lethbridge, Alta. divorce lawyer Rob Harvie.
That shouldn’t be the case, argues Canadian Research Institute for Law and the Family Executive Director, John-Paul Boyd. In his opinion, laws should be written in plain English, because they’re not written for lawyers and judges but for ordinary people.
There was a plain language reform movement in the 1990’s that called for getting rid of legalese. Almost 25 years ago, former NDP MP for Port Moody — Coquitlam, B.C., Ian Waddell, introduced a bill that would create a committee, which would rewrite laws in plain English. It didn’t pass, and one of the criticisms it received before being voted down was that the bill also used legalese.
As it stands, ordinary people are dissatisfied with the current legal system. A recent survey conducted by Abacus Data for The Action Group on Access to Justice found that 78 per cent of Ontarians think that the justice system is old fashioned and 69 per cent think it’s confusing.
Of course most people are going to find the justice system confusing if it persists in using legalese as its main form of communication.
For people to truly have access to the justice system requires that the system speak their language. That language is plain English, not legalese.