The Lord’s Prayer is 66 words, the Gettysburg Address is 286 words, and there are 1,322 words in the Declaration of Independence. Yet, government regulations on the sale of cabbage total 26,911 words.
David McIntosh, writing in National Review, October 24, 1995

I have seen variations on the above quote passed around via email and social media for years. The implication, I suppose, is that government regulations are needlessly verbose. According to Snopes.com, the sentiment long predates McIntosh’s article.

I generally have the same response whenever I see this posted somewhere, although usually the person posting the quote has no interest in actually learning more about why our laws tend to be wordy. The Lord’s Prayer, Gettysburg Address, and Declaration of Independence all had very specific subjects and objectives; briefly stated, a recommendation on how to pray, motivation in wartime, and grounds for independence from England. History has generally deemed the number of words used in each of these writings sufficient to achieve these aims, but it is always possible to say the same thing with more or fewer words. In the event of a listeria outbreak in the nation’s cabbage supply, none of these writings will be of any assistance whatsoever (unless you believe that a few “Our Father”s will be enough to protect the public, in which case I sincerely hope you do not have a high-level position in a health department.) These documents, not to mention the number of words used in each of them, is completely, totally, utterly irrelevant to the nation’s cabbage supply. It is possible that regulations pertaining to cabbage are too wordy, but this comparison does not even come close to making that case. It’s just a less-clever-than-it-thinks attempt to rail against big guv’mint. If you don’t know much of anything about public safety regulations and/or have no desire to understand them, you might find the comparison compelling.

I bring this up because of a broader tendency among people who do not know much about law or legislation to lament the inscrutability of legal writing, arguing that it should be written in a way that nearly anyone could understand. Scott Greenfield, in a post with the ridiculously awesome title “The Fallacy of Simplicity,” annihilates this argument (go read his post. I’ll wait.)

Undoubtedly, many lawyers use an unnecessarily large number of “legalese” words, perhaps because they like to use a lawyerly flourish, or maybe because they have seen other lawyers write that way and think that is simply how it is done. Other legal writing uses what seems to be excessive legalese because the writer must make a precise argument, with little to no ambiguity. Without knowledge of the legal issues in play, it is difficult for non-lawyers to know which is which. This is not a slam against non-lawyers in any way—one of the first things you learn in law school is that reality is very, very complicated, and part of a lawyer’s job is to take on some of those complications for others. (Lawyers may find the preceding sentence to be a maddening oversimplification of a lawyer’s role in society, which it is.) Some issues just require a cumbersome number of words, and there is no way around it.

We see this all the time in complaints about the unwieldy length of proposed legislation—The immigration bill is 844 pages long! Obamacare is two-and-a-half times as long as the Bible!!!1!—in the near-total absence of either context or efforts to explain how such legislation could use fewer words. How long have other, comparable laws been? Longer? Shorter? How could we achieve the goals of these laws with fewer words? No one ever even tries to answer these questions. Just like with cabbage, maybe these bills are unnecessarily long, but the people complaining the most loudly are not making that case. All we get are complaints that the bills are too long to even read, along with the occasional attempt to get proponents to admit they haven’t even read them. If the bills prescribe the wrong approach to an issue, their length is irrelevant. Complaining about the length is a way to oppose a bill without reading it, understanding it, or coming up with substantive objections. (Shorter version: only lazy or not-smart people complain about length to the exclusion of all else.)

The same is true of contracts and other pieces of legal writing that affect ordinary people more directly. To the assertion that leases and other contracts should use less legalese and be easily comprehensible to the average tenant, Mr. Greenfield has one of the best responses I’ve ever read:

There is a minor purpose in the parties knowing what they’re agreeing to, but that’s not the point of written contracts at all. The parties ought to know what they’ve agreed to without a writing or they have no contract. The point of a writing is for a court to know what they’ve agreed to when there is a dispute so that the court can determine who is right and wrong.

Law isn’t for when things are going great, but for when they aren’t.

He says elsewhere:

If your clients don’t know what they are agreeing to until they read it in writing, then you’re doing it wrong.

And as for why anyone would write “one (1),” it’s to avoid the problem of writing “one (7),” or worse that you wrote “one” but meant “one hundred.”  Oops. Better to get it right and leave no doubt than save three keystrokes.

As for “by and between,” it means that the parties who are signatory to the contract (the “by” part) are also performing the contract (the “between” part). Say you agreed to pay for a horse for your daughter to use on her farm, making you the signatory and her the performer, to whom the warranty of horsey fertility were some day due. There’s a reason for everything, even if you don’t know what it is yet. So if you left it out because you didn’t know, and the shit hit the fan later, you would look kinda foolish for having “outsmarted” the legalese and screwed your client.

And never underestimate the benefit of 100 years of gravitas. It’s saved many people from misery. Misery is not as much fun as some people think.

A basic rule of life is just because you don’t know the reason doesn’t mean there isn’t one.

I would apply the same basic explanation to why lawyers need to say “cease” and “desist.” “Cease” means to stop doing something. “Desist” means not doing it again in the future. There is a difference between the two, and it is an important one. If a lawyer sends a “cease” letter, the recipient could semi-plausibly argue later that the lawyer’s client implicitly consented to the ceased action at some future time. If you think that is absurd hair-splitting, you clearly have had the good fortune of avoiding the litigation system. Be blissful in your ignorance.

To adapt Winston Churchill, language is the worst form of human communication, except for all the other forms we have attempted. Words have nuance, and each individual sees a slightly different meaning to almost every word. Sometimes we don’t have the luxury of being succinct. Sometimes we have to be as certain as possible that our words will be understood by our intended audience, and that usually means more, and more specialized, words, not less.

Not counting this sentence, or anything after it, this post is 1,230 words long. Could I have expressed all of my intended points with fewer words? Probably, but if you’ve read this far, you probably don’t mind.

UPDATE (May 23, 2013): I edited some text above to correct some typos, after several people pointed out to me that repeating quotes verbatim with [sic], in this situation, made me look like an ass. Apologies, along with pie.

Photo credits: Dinkum (Own work) [CC0], via Wikimedia Commons; David B. Langston [CC-BY-3.0], via Wikimedia Commons.