Legalese: code for "assumes the reader is a moron"

In my last post, Why businesspeople hate lawyers, I complained that legalese is one way for lawyers to show off their basic lawyerliness. This sets them apart from their clients, and puts their own interests before their clients'. And what is the defining characteristic of legalese? It is where the writer — a lawyer, or someone trying to act like a lawyer — writes in a way that Assumes The Reader Is A Moron.

Let's call it ATRIAM for short.

Examples abound. For instance, most legal briefs and motions begin like this:

____________________
                                 
John Smith,          
    Plaintiff               

v.

Example Corp., Inc.,
    Defendant
____________________

Defendant Example Corp., Inc.'s Motion to
Compel Production of Documents from
Plaintiff John Smith Pursuant to
Fed. R. Civ. P. 34

Now comes Defendant Example Corp., Inc. (hereinafter, "Defendant"), who moves to compel the production of documents (hereinafter, "the Documents") from Plaintiff John Smith (hereinafter, "Plaintiff" or "Mr. Smith") pursuant to Fed. R. Civ. P. 34 (hereinafter, "Rule 34"). For the reasons stated below ...

*   *   *

Put aside for now the superfluous "now comes" business and the omnipresent "pursuant to" (do lawyers have trouble saying "under"?). Let's talk about the "helpful" parentheticals:

Was the lawyer thinking that the reader — in this case, a judge — wouldn't remember what he or she read ten seconds ago? Is the judge really going to read the caption (which names the parties), read the title (which says what the document is), and then get to the first paragraph and go, "Who the heck is this John Smith? And what is he doing here?"

Journalists don't have this problem. Have you ever read a newspaper article that turns a person into a defined term? Roger Clemens ("Mr. Clemens") struck out eight batters yesterday. After the game, Clemens said ... Would the reader not know who "Clemens" was without the parenthetical? Are sports-page readers smarter than brief readers?

Maybe the lawyer thinks the hereinafter parentheticals are helpful, or perhaps more precise. But in this brief, there's only one Example Corp. and there's only one Smith. The caption identified them, and said who's the plaintiff and who's the defendant. The only time a parenthetical is helpful is when the names are confusing, or when you need to distinguish one "Smith" from another.

In fact, most lawyers write this way because most lawyers write this way. We've been reading briefs and judicial opinions and memos since law school, and we think that's what we're supposed to do. We don't really know why.

But that's not a good enough reason. A lawyer shouldn't write anything without knowing why. By adding the unnecessary parentheticals, the lawyer is sending the ATRIAM message: that he or she assumes the reader is a moron.

More examples to follow ...