What is to be done – the burning (legal) issue of our time*

It is so hard to keep up with fashion and know what is right.  Every attorney knows this.  Once upon a time, the rules were clear. Third parties shall meet their obligations.  The legal writer used the modal “shall” in full confidence that everybody understood the word “shall” to mean to have no choice.

Alas, the world has become more complex.  Experts and governments have cast doubt on that assumption, rendering it difficult to know how diligent counselors are supposed to express themselves.  For example, Kenneth Adams, in his Manual of Style for Contact Drafting, insists on shall for expressing obligation but specifying the use for third parties. He is not fond of must, arguing that it does not create an obligation but instead describes it, adding that its tone gets obnoxious over a long document. The federal register, http://www.archives.gov/federal-register/write/legal-docs/clear-writing.html, disagrees with him and states that must does create an obligation. The ABC rule, invented by a group of Australian, British and Canadian legal writers, had previously suggested that the change to must. Shall seems to be going the way of whither, hither and thither, perfectly wonderful words that were used improperly.

Of course, there are a few will supporters. Technically, “will” refers is predictive in the second and third person but prescriptive in the first person.  This apparent ambiguity renders it inappropriate for stating an obligation.  This lack of clarity is undeniable but its simple sound is pleasant to the ear.

Back to our shall, courts have occasionally ruled that it can imply permission, thus also rendering it ambiguous.  Still, 99% of the population would understand that the sentence John shall pay Mary $500 a month for rent involves an obligation, not a choice.  Since it combines sufficient clarity and a mellow sound, I prefer the American “compromise” of shall.

Still, as I continue to translate contracts, I must admit that I will be subject to bouts of doubt regarding what modal to apply in the sentence of obligation before me.  I hope that I won’t be considered too old fashioned if I continue to use the classic simple shall or even will.

* What is to be done is the name of a romantic novel by Nikolai Chernyshevsky in 1886, which inspired many later revolutionaries in Russia for some reason, including Lenin himself, who wrote a similarly titled pamphlet in 1901, adding “the burning issues of our time”, describing his agenda for change, to put it diplomatically.

Tradition vs. Clarity – The Legal Writing Conundrum

As a legal translator, I am by definition a legal writer.  As such, I apply my history, learned tendencies, and natural instincts every time I tap that keyboard.  In my case, the following are the most dominant:

a     .      My father was a journalist and instilled me with the love of brevity, i.e. why use three words when one will suffice.

b     .      I went to law school (the University of Oregon) but never practiced law, meaning I understand but have never written original legal documents.

c     .       I am also an English teacher with a thorough knowledge and respect of grammar rules, making me someone inflexible in regards to starting sentences with but and and, to name a few.

This background places me in a dilemma when I translate contracts, my favorite type of document because it actually tries to say something even in omission.  On the one hand, I want to adopt the American “plain language” initiative.  I love to eliminate extra prepositions, archaic shall’s, and redundant legal phrases such as last will and testament.  In short, I want the average educated person to quickly read and understand what s/he is signing.

  On the other hand, I may be wrong.  I recently participated in an ATA webinar on French and English legal translating.  The speaker emphasized the importance of reiteration in English legal writing as a means of avoiding ambiguity.  For example, in the following sentence, the second, underline will should be retained to ensure clarity: The Service Provider will provide the required materials and will guarantee their appropriateness for the intended use.  The second helping verb screams at me, albeit silently.  Still, if it is more important to be precise than concise, it should remain in the sentence.

So, after listening to the excellent webinar and reading Brian Garner’s opposite thinking book, Legal Writing in Plain English (2001), I find myself struggling to determine a policy when editing other people’s translation.  Should I correct them when they are wordy and old-fashioned?  Should I change my proletariat style and learn Dickens-like English? 

In all probability, I will stick to my beliefs and prefer the informal styling of legal writing.  I may adjust my editing to be more tolerant to those that have more respect for tradition.  Still, the ideal way is the most difficult, involving two proverbs: there are many ways to skin a cat (figuratively, of course); moderation in all matters, including moderation.  In other words, I will strive to accept the individual differences in writing style as long as it does not break some holy rule, such as beginning a sentence with and.

I happily invite reactions from translators, lawyers, and others.

(Thumbs) Ups and Down of English Grammar Usage Change

Language and generation are closely linked.  By hearing the words and structure of a sentence, it is possible to know the approximate age of the speaker and, to a lesser degree, writer.  It is clear that since languages are living and dynamic, they will evolve in time. However, just as in regards to the changes in our mind and body as we grow older, we are entitled to our opinions about them.  Alas, as with our complaints about reduced vision, expanded stomachs, and disappearing hair, complaints don’t make any difference.  Still, it does provide some satisfaction to voice them.

The gradual disappearance of whom, the ithers, and the present perfect for emphasis saddens me for some reason.  I like the sound of phrases such as “To whom am I speaking” and “For whom it may concern” not to mention that classic Hemmingway title For Whom the Bell Tolls (Orwell’s Homage to Catalonia was a far superior book on the Spanish Civil War).  They simply have more character than “who am talking to”, for example. As for the “ithers”, hither, whither, and thither, the last surviving remnants of the Latin locative case in English are only expressed in two expressions: come hither and whither to.  For those younger readers, locative expresses direction as compared to location and thrives in Russian and Hebrew in such forms куда [kuda] instead of где [gde], сюда [syuda] instead of здесь [sdyess], туда [tuda] instead of там [tam] and לאן [la’an] instead of איפה [aifo], שמה [shama] instead of שם [sham] and הנה [hena] instead of כאן [kan] for where, there, and here in Russian and Hebrew, respectively.    Finally, Americans now commonly use the past simple instead of the present perfect in the following sentence: I just woke up instead I have just woken up.  The latter form, still preferred by UK speakers I am told, better emphasizes the fact that I don’t want to talk or make decisions until I drink my first cup of coffee or tea.  In short, it adds flavor and texture to the language, which is desirable in the right proportion.

So as not appear as a grumpy old man fighting progress, there are usage changes that I like, really.  The almost complete extinction of the word shall brings me great joy.  The only time I see it is in the legal texts I translate, which are archaic anyway and don’t count for measuring active use.  The reason for my joy is who in the hell could remember the stupid rule: Future: I shall, we shall, all the others “will”; determinative: I will, we will, everything else “shall”.  Moreover, why should we remember that rule?  I have the same sentiment to the long forgotten restriction of the word can to ability only and not permission.  I hated the elementary school teacher answer to the question “Can I go to the bathroom?”: Yes, you can, but you may not.”  Now it is much clearer: “you can’t” without the grammar lesson.

I just have one more small request for one word to disappear as fast as possible: awesome.  The sound of middle-aged sports announcers saying that the singing of the national anthem was “awesome” sounds like parents trying to copy their teenager’s language, i.e. pathetic and utterly unnatural.

So, language will change for better or worse, whether we like it or not.  Let me know if any change in your language that pains or gladdens your heart.

Legally Put

As a legal translator, I am not intimidated by legal language, but I recognized that even most native speakers regard the language of Shakespeare and contracts in the same light: sounds impressive but what the hell does it mean?  Who, aside from attorneys, paralegals, and legal translators, actually reads all those words in small print?

However, there is a surprisingly variety of styles in legal writing, depending on the country, purpose of document, age of attorney, and general attitude of the writer.  Two examples of this variety involved the omnipresent legal concepts of need and permission.

All contacts describe the obligations and rights of a party (not including having a good time, of course).  The issue is how to express it.  The following sentences all technically express the same requirement:

a.      The Renter shall pay the rent to the Lessor on the first day of each month.

b.      The Renter will pay the rent to the Lessor on the first day of each month.

c.       The Renter commits to paying the rent to the Lessor on the first day of each month.
- Added note:  On a sugestion from Janet Lerner, a fourth option is "The Renter is to pay the rent..."  Also very nice in my opinion.

Clearly, all three are clear and identical in meaning, with the difference being in the verb.  The use of shall as a determinative, not future, is based on the previously accepted distinction, at least by English teachers, between will and shall.  According to this archaic usage, the conjugation I shall, you will, s/he will, we shall, they will expresses the future while the conjugation I will, you shall, s/he shall, we will, they shall expresses a lack of choice.  In the case in hand, “The Renter shall…” means that the Renter has no choice.  Alas, for better or worse, I strongly doubt that many native speakers in the United States under the 30 know about this quaint rule.  In more modern English, the second sentence “The Renter will…” also expresses obligation.  The third option is less attractive both because it adds words and sounds like a translation.  However, language is a matter of taste sometimes.    As my father used to be a journalist, he ingrained in me a hatred of wasted words.

The second example involves expressions regarding the right to do something:

a.      The Lessor is entitled to cancel the agreement at any time.

b.      The Lessor has the right to cancel the agreement at any time.

c.       The Lessor may cancel the agreement.

Regarding the first, the word entitled is generally used for children and land purchases.  While technically correct, it is less applicable in this sentence.  The second is classic legal language, used in countless contracts.  However, the third is much less intimidating to the average reader and means the exact same thing.  There are disputes whether legal language should “go down” to the people.  The U.S. Congress has passed legislation ordering that.  Therefore, for reasons of simplicity, efficiency, and accessibility, I actually prefer the third option, although many lawyers would probably disagree with me.

So, no matter how you wish to legally put it, variety is the spice of life, or at least disputes, in the legal world.