By Judge Stephen Halsey—
Surveys have shown that a significant percentage of citizens who have appeared in court, whether on a divorce matter, speeding ticket or jury duty, have no idea what just happened. Judge Dennis Duggan of Albany, N.Y., in a 2006 article entitled, “When Judges Talk, Why No One Listens,” lists 100 legal terms that lawyers used in his courtroom over a three-week period. Here are a few:
Adjudication, consanguinity, putative, decretal, inchoate, verbatim, sequestration, pro se, presumption, prima facie, pro bono and bifurcated.
Lawyers and judges (judges are also lawyers) are trained to use legal terminology, as it is the language of their craft, just as doctors, plumbers, electricians, teachers, astronauts and engineers have language that those people within their trade will understand, but of which the general public is clueless.
Courtroom language also involves abbreviations such as ICWA, PSI, DAR, and CD TX. Latin isn’t even taught in most high schools anymore, yet the legal profession and the courts persist in using Latin phrases such as “quantum meruit,” which means “as much as he deserved,” that is, the actual value of services performed in a contract case. Given that a great many of the parents in family and juvenile court are not represented by an attorney, this may result in these unintended consequences:
1. Feelings of exclusion: People who don’t understand the legalese feel excluded, particularly those who don’t speak English.
2. Mistrust: People do not trust a process that they do not understand.
3. Disrespect: People feel disrespect and denial of their constitutional right to due process.
4. Miscommunication: People who do not understand what the lawyers just argued and what the judge ordered are less likely to follow the court’s order. They may have further adverse consequences when accused of violating the conditions of their probation or the judge’s order.
Part of the problem is the manner in which laws are passed by the Legislature. For example, the child support law includes a sub-paragraph on modification of child support that is about 150 words long, includes references to several Minnesota statutes, and refers to AFDC and the Federal Bureau of Labor Statistics. A lawyer would be hard-pressed to understand it, let alone a person with no lawyer. The majority of parents in the child support court process do not have lawyers.
The judicial system needs to do a better job of communicating in understandable language with citizens participating in the judicial process. Jury instructions should be re-written in understandable English. The courts need to work at it. It is much more difficult to write a good short story than a good novel.
So, please pardon our use of legalese in court. If a judge or lawyer says something that you don’t understand, please ask them to explain it.
It’s in your court.