The language of law is often nearly impenetrable, even to those of us who are supposed to know it. Apparently, somewhere in the history of law, lawyers decided that nothing was worth writing unless it was long, complex and opaque.
The Founding Fathers rejected this, but lawyers promptly forgot it. The Constitution is only about eight pages when copied and pasted into a text document, but the health-care bill pending before Congress is over a thousand. The former document was sufficient to establish a country, three branches of government and a variety of enumerated rights. The latter may not be sufficient to say “everybody gets health care if they need it.”
All this complicated language has been job insurance for lawyers. It still is, since even though anyone with a computer and Internet connection can access the law, few can understand it.
Dire consequences
Minnesota’s “Form 1” — the form for a summons [PDF] — is a good example of just how impenetrable the law can be. The form reads:
“You are hereby summoned and required to serve upon plaintiff’s attorney an answer to the complaint which is herewith served upon you within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so judgment by default will be taken against you for the relief demanded in the complaint.”
All of that archaic jargon means this: “You have been sued, and if you do not respond in 20 days, you will lose.” If the summons actually said that, more people might understand what they have to do.
Fortunately, after 50 years, the summons form may finally change. The version recently recommended by the Minnesota Supreme Court Advisory Committee on Rules of Civil Procedure begins “YOU ARE BEING SUED,” and includes explicit, plain-English directions to the person sued, like “YOU MUST REPLY WITHIN 20 DAYS TO PROTECT YOUR RIGHTS.” The recipient must still read the summons, of course, but with the recommended version, they might actually understand it if they do.
The law could use more updates, though. The summons is especially important, but it is not the only legal form in need of change. Consider the language Minnesota courts use for an “order to show cause.” A typical order to show cause begins this way:
“It is Ordered that [person] personally appear before the Court at [address] and show cause why he/she should not be adjudged in contempt of court for failure to [do something].
“Failure to appear or respond will result in the issuance of a Bench Warrant for the judgment debtor’s arrest.”
It means this: “show up or you will be arrested.” It does not say that in anything approaching plain language. When I am in court for a hearing, I often sit and watch while others appear before the judge. Frequently, one debt collection lawyer after another will get warrants for debtors’ arrest, sometimes on debts of less than $1,000.
Defaulting for failure to respond to a summons is one thing; defaulting for failure to respond to an order to show cause is quite another. I doubt those debtors realized they would wind up in jail if they did not come to court. A bit of plain language might be able to save them a very unwelcome surprise when the sheriff shows up at their door.
Language as its own barrier
The problem is compounded by all the different languages spoken in Minnesota.Whether a summons or order to show cause are written in plain language is more or less irrelevant when a school-age child is trying to translate the document for a family member who does not speak English.
Translating every document in a lawsuit would be impractical, if not impossible. But perhaps some forms — like those that start a lawsuit or can result in imprisonment, for example — and court rules ought to be translated into the two or three most-common languages in the county.
Updating legal language
Some parts of the law do require volumes of statutes and interpretive judicial opinions for full understanding. Others, like most of the forms and rules, do not, and their archaic language could be — and should be — updated for understanding.
Changes to those forms and court rules happen at a glacial pace. The changes to the summons, for example, would be the first in 50 years. And still the Minnesota Supreme Court must approve the changes if they are to happen at all. There is no task force or committee specifically charged with updating and simplifying forms, rules and laws for better understanding by the public. Those tasks fall within the scope of the Minnesota Supreme Court’s various advisory committees, but the limited number of volunteers already have their hands full.
Perhaps since more and more non-lawyers are able to access the law and are trying to take care of their own legal matters, the language of the law will become more plain by necessity. Or perhaps the glacial pace of change in the law will prevail in the end.
A much faster way to reform legal language is to change the constitution to read that judges must NOT be learned in the law – except in appelate and supreme courts where interpretation by scholars is needed. Not unlike juries.
Justice would be speedier – and less costly – simply for each side to have to present their case in plain language and common sense instead of in technicalities. Today even our jury system is skewed because they also are instructed to decided on technicalities, not on their common sense.
Way too much of our legal system is spent on idiosyncracies, and “gotcha law” that most people , including lawyers with different specialties, don’t understand. There is way too much clever law, written by lawyers for their own purposes, designed to take advantage of an opponent – whether that opponent be an individual or an opposing giant corporation.
I know or have known a lot of judges, some outstanding, some terrible. Universally it seems the terrible ones that I know went into the judicial branch – not out of idealism or altruism – but because a judge’s pay was more than they could earn practicing law. Few successful lawyers want a big pay cut to become a judge. Even fewer good lawyers want to become “Referees” due to pay level. At one time I researched several referees only to find that the practices they had come from had failed or done poorly. Is that who we want deciding cases? People who are not good at their jobs?
So coming around to the initial point. A judge system of those not learned in the law would make opposing legal sides work in simple terms.
Of course, it aint gonna happen, because the legal community also comprises a large portion of our elected community. But I can dream, can’t I …?