#LegalEnglish round-up #1

This post begins a new regular feature that instantly makes this blog more useful for you, the ESL attorney who wants—who needs—to write better on legal topics in English.

A recent post announced this new feature. That earlier post stated that the new feature would be called “’recent links of special interest’ (or whatever regular heading I eventually choose . . . .).” The choice is now in. The heading that I eventually chose for the series is what you now see at the top of this post.

(Why is it “#LegalEnglish round-up” instead of “#LegalEnglish roundup”? I’ll discuss this blog’s use of hyphens in a future post.)

This new feature is best seen as a “round-up.” Before I ever publish any post in this series, I will have done my best to “round up” and sift through the mass of material reasonably related to ESL Legal English that I find online. My sifting will allow each round-up post to refer you to only a handful of links that hold real interest for our purposes on this blog. Each round-up post should cover 3-5 links that relate in some substantial way to our project of improving your written Legal English.

The round-up posts themselves will present my reviews of and comments on the materials available at the links cited in my round-up posts. The focus thus begins with materials available on other sites. But my opinions as a writer, editor, and writing teacher, my perspective on written Legal English, will come through in these posts just as they do in posts devoted to single topics.

This series will contain important, useful posts for you as you work to improve your written Legal English. Through these posts, you’ll magnify your ability to review good online materials related to Legal English—because I will have reviewed many materials before I condense my research down to each round-up post. You’ll also be able to compare my approach for yourself, quickly and directly, to other specific perspectives available online.

These round-up posts will not necessarily present what I see as “the best of the best.” But they will present a range of what I see as “the most interesting of the interesting” for our purposes.

Without further ado, here is this blog’s first round-up review of resources related to written Legal English.

1. “English in the European Union”—Video by The Open University

This beautifully produced nineteen-minute video is one of the plums I’ve found in the past few months in my networking on social media. Make time to watch it. You won’t regret it. There’s enough material here that you’d need an entire graduate-level seminar to have any hope of unpacking all of it.

The video covers the complex, controversial role that the English language has come to play in the European Union since approximately the mid-1990s. According to the video, that’s when English really started its rise to the status of lingua franca in the EU. Not coincidentally, that rise occurred when the EU enlarged to include countries in which English was already a common second language. The recurrent theme in the video is that English has become the dominant language throughout the EU today.

But English’s current status as the lingua franca in the EU does not mean that English enjoys universal approval in the EU. The proud place of the French language in Europe has declined precipitously while English has enjoyed its recent increase. Understandably, that development does not sit well with many people in France. A Frenchman interviewed for the video—a man who can speak English but who speaks only French in the video—notes that languages are not politically neutral. He observes that the period in which English has risen in the EU directly coincides with what he sees as an increasing liberalization of European society. It’s of course too easy to say that English itself “causes” a liberalization of society. But I also have to notice a similarity between this Frenchman’s point and my continuing point that truly plain English often is not the best solution for ESL attorneys when they write on legal topics in English.

One particular segment in the video illustrates why anyone using English as a second language for professional purposes—and especially an ESL attorney—needs to work hard to improve or even just to maintain English-language skills. As in any other language, in English, too, nuances can be everything. For example, one ESL speaker referred to in the video once told an interpreter, in English, “I’m glad you took your time to get here.” She meant, “I’m glad you took the time to get here.” To any mother-tongue speaker of English, the first comment is an insult, whereas the second is a compliment. Only one word differs between the two sentences (“your time” vs. “the time”), but the difference in meaning is profound. The importance of such a basic linguistic principle for legal writing needs no elaboration.

In short, this video gives you a wonderful entrée into the subject of “English in the European Union.” Set aside nineteen minutes for this little gem as soon as you can.

2. “Shall I or shan’t I? Shall, must and the plain language brigade”—Blog post at Transblawg

Many times on this blog, I’ve stated my considered professional opinion—as a writer, writing teacher, editor, and attorney whose relevant experience goes back more than thirty years—that “plain English” is not always the best solution for attorneys who write on legal topics in English. For example, that opinion appears prominently in my posts on formality in written Legal English (Part 2 of 4) and on how to make written Legal English less formal (Part 1 of 2). I’ve also stressed that that assessment especially applies in cultures that value formality more highly than modern Americans typically do.

As an ESL attorney, you probably don’t appreciate the magnitude of what some Anglo-American attorneys would see as my heresy in daring to doubt the universal value of plain English. My opinion probably strikes you as reasonable and fairly nondescript—as I think it should strike you. Many Anglo-American attorneys, though, treat plain English as the One True Faith. Every time I publish my doubts about plain English, I feel something of what Galileo must have felt when he published his fairly obvious findings that celestial bodies really do revolve around Jupiter: All I’m saying is that a fairly nondescript reality is right in front of us, even though it flatly contradicts what some people insist on telling us that reality is or should be.

I’m delighted to report that at least one other English-mother-tongue attorney distances herself publicly from what she calls the “plain language brigade.” That distancing occurs in this interesting recent post on the auxiliary verbs shall and must at Transblawg, a longstanding blog on German-English legal translation by non-practicing English attorney Margaret Marks. Margaret’s post discusses why she uses shall instead of must in a legal translation—even though she’s fully aware of the strong antagonism toward shall by some people in the plain-English community. Kudos to Margaret for favoring a flexible, informed audience analysis over unthinking allegiance to any abstract intellectual position.

For you, the writing ESL attorney, Margaret’s post holds at least two practical points of interest. The first is simply her willingness to trust her own experienced judgment of the full rhetorical situation surrounding her linguistic task. In her post, Margaret is writing as a translator of a German-language document, not as an attorney who is drafting the document in English in the first instance. She’s therefore stuck with whatever clarity or ambiguity resides in the original text that she translates. Her goal as a translator is to render the original as accurately as possible—even if an accurate English translation might not be the English that she or plain-English supporters would prefer. But notice how she still exercises her own professional judgment to choose the one word that (in her judgment) most accurately expresses the meaning.

Does a given writing situation require more or less formality? Why? Why not? Do the English words you’re choosing acknowledge the actual rhetorical situation that’s in front of you as you write? Margaret asked and answered such questions. You should do the same—and then go with what your judgment tells you is best, just as you always do when you write in your mother tongue.

The second point to notice is how carefully Margaret considers the nuances of the auxiliary verbs that she could have used in her English translation. Undertake to, shall, must, will, is to—she considers all of them, along with relevant aspects of each, before she settles on shall.

Should you exercise a similar degree of care as you weigh the nuances of individual words when you write on legal topics in English?

Do I really need to answer that question?

3. “Differences between English and US law—choose your words carefully”—Guest blog post at From Words to Deeds: translation & the law

Written by a trilingual American attorney (English/Spanish/Mandarin Chinese), this post discusses substantive differences between American and English contract law. Obviously, one blog post can suggest only a whisper of the breadth of considerations on such a topic. I include it in this first round-up, partly because it’s so nicely done, but mainly to highlight a key issue that I’ll probably address more aggressively in future posts on this blog.

What’s that key issue?

Much of what I say about “English” on this blog applies to both American English and British English. Inevitably, though, much of what I say about “English” applies only to American English—because I’m American, not British. It’s not surprising that the language of law in two common-law jurisdictions has evolved into identifiable, separate paths even in the same general area of law. But the differences between American and British English run much deeper than that, with each version of English having its own entrenched catalogue of idiomatic expressions. And that point doesn’t even account for Irish English, Australian English, and so on.

I’ve been looking for a way to raise this important question on this blog, and linking to this interesting guest post at From Words to Deeds ably serves that purpose. I’ve also been thinking that occasional guest posts by non-American English-mother-tongue attorneys could shore up this aspect of this blog while also giving us some productive give-and-take on what the differences between American and other Englishes can mean for attorneys. Now that the issue is in the conversation, we’ll see how that possibility plays out as this blog matures.

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What links have you found lately that might help your fellow ESL attorneys improve their writing skills in English? Tell us about those links in the Comments section at the end of this post. What do you like about the online materials related to ESL Legal English that you’ve found? How have they helped you? What could they do better?

And what are your impressions—pro, con, or somewhere in between—on the links I’ve just discussed in this post? I’d like to know what you think about them, and your fellow readers of this blog also would benefit from your comments.

Before you send proposed public comments in response to posts on The Englished Advocate™, please review the Blog Comments Policy on the Policies page of this site.

If you prefer to respond to the blog privately, please send questions and comments about the blog--in English--to dialogue@waggonerlegalenglish.com.

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