Lord Justice Mummery’s judgment referred to in the previous post is admirably short at 34 paragraphs (and the other two judges agreed — very un-Australian) but it it is an exemplar of the worst excesses of EOD, an excrescence on legal writing which achieves precisely the opposite (confusion) of that which it has an air of promoting (clarity). If I were the Lord Chancellor, I would direct that no pleading, affidavit, or judgment contain any TLAs. Or FLAs for that matter. Definitions in legal writing are out of control. I would also direct that any defined term which is not again used in a document render its draftsman liable to a fine payable to charity, and that a lesser fine apply to any definition which the man on the Clapham omnibus would consider reasonably unnecessary. I would task the recipient charities with enforcement and suggest they develop a robotic text crawler which would search the online annals of legal writing for the work of those who feel it necessary to define, say, Ladro Pizza Pty Ltd as “Ladro Pizza” where there is no sense of “Ladro Pizza” which could be confused with the sense of it as the shortening of the name of the company (as would be the case if that company owned the ridiculously popular Fitzroy pizzeria named “Ladro”). Consider this abomination of legal writing from Lord Justice Mummery’s judgment:
“He dismissed an application by Gus Consulting GmbH (previously known as CAIB InvestmentBank AG and referred to as “CAIB” by the parties and in this judgment) under section 44(2)(e) of the Arbitration Act 1996 and/or the inherent jurisdiction of the court for an order restraining LeBoeuf, Lamb, Greene & MacRae (LLGM), an American law firm with offices in London (as well as in New York and Moscow), from acting for, advising or otherwise assisting DCL-KF Corporation (DCL) in relation to the pending arbitration proceedings brought by DCL against CAIB and others in the London Court of International Arbitration (LCIA).”
What makes things worse is that the judge at first instance seems to have used perfectly reasonable definitions, such as “LeBoeuf”, so that inconsistency with the language of the decision below was thrown as an ingredient into the soup of uncertainty created by using so many TLAs.
It would be an interesting test to set 5 lawyers the task of writing a 300 word case note of the original judgment and 5 others the task of writing a note by reference to the judgment but with “the former client” substituted for “CAIB”, “the firm” for “LLGM, “the current client” for DCL and “the Court of Arbitration” for LCIA. The different times taken could then be multiplied by the anticipated number of times lawyers would have to understand the case at their clients’ expense (“anticipated advice events”) and then multiplied by the average hourly rates of those lawyers (“adjusted average hourly rate”) to arrive at the hidden cost to society (“HCS”) of such writing.
(TLA: three letter acronym.)