The US and the UK - so the saying goes - are “two countries divided by a common language”. The same could be said for lawyers and non-lawyers. Lawyers talk in a language which must seem like gobbledygook to everyone else. Take the word “tort”. Any law student knows that it means “civil wrong”. But ask a non-lawyer to give you a sentence with the word “tort” in it and they might as well say: “I tort I tore a puddy cat!” for all the sense it will mean to them.

The Civil Procedure Rules, which came into force in 1999, were deliberately written in plain English. There is no Latin and various expressions have been changed to make them more accessible. For instance, “pleadings” became “statements of case”, “ex parte” became “without notice”, “Mareva" and "Anton Pillar" orders became “freezing" and "search" orders. But however much updating is done, the language of the law still remains a separate entity from everyday usage. More than that, it alienates those who don’t understand the language from those who do, putting the former at a distinct disadvantage.

Take the expression “a balance of probabilities”. It sounds like some kind of ethereal, philosophical concept: an absurdly avant-garde proposition. In fact, it is the cornerstone of the basis on which all decisions on evidence are made in civil and family disputes, known as “the standard of proof” (yet another legal expression). In criminal courts, the standard of proof is one of complete certainty of a defendant’s guilt in order for them to be convicted, which used to be commonly known as “beyond reasonable doubt”. In the civil and family courts however, the decision-maker only has to prefer one person’s version of events as being slightly more “probable” than another’s. Hence the expression “ a balance of probabilities”.

The language differences do not stop there. They extend to the language used by lawyers in court as part of every day use. “With great respect” addressed to another means, “you are talking a load of rubbish”. “May it please your honour” spoken often to a judge in order to open a party’s case, would not be out of place in a Shakespearean play. How often do you find the need to say to someone “I put it to you that...”? Advocates do it all the time. That particular expression was on a list of expressions that judges did not like hearing that was drawn up after an informal enquiry in 2002. Others included: “In my respectful submission”, “I hear what you say”, “I suggest”, “Sir will see” and ““If I may trespass upon your honour’s patience…”.

My thoughts on legal language were prompted by a recent visit to Ireland. I picked up the local paper and was inevitably drawn to the court reports. I was particularly struck by the direct way the judges spoke to the defendants. In one case a judge, addressing a schoolgirl truant, threatened her with being sent to Mountjoy prison. He said: “she was well capable of getting a good education and, while she wanted to look cool, there was nothing cool about Mountjoy”. Another judge warned an alcoholic defendant that if he didn’t do something about his drinking problem he would be become “an incoherent rabble and a wreck”. Finally, a defendant was told by the judge that he “must have been praying hard in order to escape prison”.

Judges are told, in particular when giving sentences or dealing with non-lawyers, that we must speak in a language that the person being addressed will understand. Forcing lawyers to drop the habits of a lifetime and adopt a style of communication which is unfamiliar to them may be easier said than done. But that does not mean that it is not necessary if the legal profession is to avoid accusations of being out of touch and elitist. After all, a bit of plain speaking can go a long way.

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