Criticizing lawyers’ language has been an amusing parlor game for many generations now, but it has done little to get rid of legalese. Played in a back room, and on special occasions only, the game is tolerated by most, taken seriously by few. Tell a lawyer that this is no game, that the language of this contract or that statute must actually be rewritten because it is gibberish, and you are likely to get the reaction of a Shriner whose fez has been knocked off by pranksters: the eyes smolder and the body quivers like Jello.

It is not surprising that lawyers insist that criticism of their language is just a game, for their language loses every round. With cynical rhetoric bolstered by uncontradicted empirical evidence that legal language does not do what it is supposed to do, does many harmful things that it is not supposed to do, and is quite unnecessary, the critics score their points. The defenders respond with bluster, expressions of faith, and finally, silence in the face of the empirical evidence. But ultimately the debate with the critics of legalese is shunted aside and dismissed as mere pastime. Meanwhile, in the front office it is business as usual: the contracts, wills, statutes, regulations and letters gush forth from the ancient fountainhead of legalese.

Things are changing. It has become apparent to growing numbers of people that criticizing legal language is not just a game. It is now time to call the bluff of the defenders of legal language. To dismiss criticism of legalese as a mere game is to pretend that there are no real stakes. But just as it is obvious to every school child who has ever scrawled a dirty word on the chalkboard that language is power, so it ought to be obvious to all of us that lawyers’ language is power exercised by a power elite and that the stakes in it are very real and very high. Let us take a careful, comprehensive look at the critiques and defenses of legalese, at the empirical evidence, and at what is really at stake.