Amanda Morris (PLD Member)
I have always loved language. In fact, when I decided at age 14 to become a lawyer, it was mostly because I loved thinking about words and the inherent difficulties of communication. So transitioning to legal translation felt very natural and right, but it certainly didn’t solve the issues I have with unwieldy and, frankly, ugly legal writing.
Communication is fascinating: even when our brains run on similar “software,” that is to say, a similar culture and values, each brain’s “hardware” is unique. Conveying information to other people is an undeniably complicated endeavor, and trying to do it in more than one language, even more so.
Legal drafting and translating have their own complexity, beyond even the hardships of regular communication; they require much more than just finding “le mot juste,” which, as any writer can tell you, is fiendishly difficult: the text has to be constructed with precision, clarity and, if possible, elegance. After all, the proverbial misplaced comma can cost a client millions – that’s not an urban legend of sorts. It happened to a client of mine back in the days when I worked as an attorney, and that single is-it-missing-by-mistake-or-on-purpose comma engendered years of litigation. Oh, and just to be clear: I was hired to fix the mess; I wasn’t the one who drafted the faulty contract!
So it’s quite reasonable to wonder, why choose arcane language and circuitous phraseology when ambiguity can be very expensive? Why use archaic terminology when plain, modern language would not only suffice, but would be even better and clearer?
This is where the “plain language movement” comes in: it posits that legalese (or juridiquês, the Portuguese equivalent) doesn’t need to be incomprehensible to most people or even, sometimes, to members of the legal profession. If precision and clarity are the desired result, simple and straightforward works best – specific legal concepts and words are complex enough as it is.
The plain language movement has been around for a while. Several associations in Britain, the United States and Brazil have requested change, and there are even several plain language regulations in America. All in all, we can probably agree that a movement that proposes the use of plain language to clearly convey a complex message is to be praised. It’s just common sense.
But the truth is that several (I’d even venture to say most) legal drafters, both in English and in Portuguese, still write in the old-fashioned way.
Of course, there is something to be said about maintaining tradition and keeping old signifiers that an expert reader can decode; that’s the excuse most legal drafters use. But it’s also restrictive and downright undemocratic. Either way, this is a matter legal drafters should resolve among themselves.
However, legal translators also have to deal with cumbersome source texts. What are we to do, then? Focus on style, on meaning or just try to be as close as we can to a mirror image of the source text?
First, we have to go back to the major difficulty most translators face when working between English and Portuguese, that of translating legal documents from a common law system into a civil law system or vice-versa. There are many different variables to be considered, the main being that several concepts from the source legal system simply do not exist in the target. So the first step is to identify the essential technical/legal terms in the source language and figure out equivalents that target readers will understand properly, and then faithfully convey the original meaning.
After we’ve settled the terminology issue, we then have to detect the type of text to be translated―is it prescriptive or descriptive? Is it a contract, an opinion or a statute? That’s the essential distinction, style-wise, as each different kind of legal document has its own form and must be absolutely clear and faithful in the translation.
Then, of course, we reach the crux of the issue. If the source text is constructed in epically unreadable legalese or juridiquês, does the legal translator have the freedom to simplify the text? I believe we do. Of course, the client has final say; if they want convoluted and arcane, so be it. If not, I propose we go off script. Let’s be bold!
Obviously, we should be as faithful as possible to the order of the text, the specific legal terms and the meaning, but I say let’s go ahead and slash long, unwieldy sentences in half, replace arcane terms with plain language and opt for a straightforward, clear style. Write as real people write today – well, as literate real people write today. It’s liberating and, what’s more, it’s good work.
In the end, though, the only writing advice I can safely give is to keep asking questions and learning. As translators, language is our instrument; our writing style and translation techniques can always be honed. Choose your instruments well, refine your knowledge and move forward, always. Just be careful with your commas!
- Adams, Matthew. “Plain English: The Cure against Translating Infectious Legal Speech.” The ATA Chronicle, September 1, 2005, 28-29.
- Adler, Mark. “The Plain Language Movement.” In The Oxford Handbook of Language and Law, 67. Kindle Edition, 2012.
- Garner, Bryan A. Legal Writing in Plain English: A Text with Exercises. Chicago: University of Chicago Press, 2001.
- Gonzalez-Ruiz, Victor. “Trying to See the Wood despite the Trees: A Plain Approach to Legal Translation.” In The Ashgate Handbook of Legal Translation, 71. Kindle Edition, 2014.
- Mellinkoff, David. The Language of the Law. Boston: Resource Publications, 2004.
- Šarčevič, Susan. New Approach to Legal Translation. The Hague: Kluwer Law International, 1997.
- Wydick, Richard C. Plain English for Lawyers. 5th ed. Durham, N.C.: Carolina Academic Press, 2005.
- Plain Language ― Improving Communication from the Federal Government to the Public: http://www.plainlanguage.gov
- Plain Language ― Fighting for Crystal-Clear Communication Since 1979: http://www.plainenglish.co.uk/
- Campanha Nacional pela Simplificação da Linguagem Jurídica: http://www.amb.com.br/portal/web/portal/juridiques/juridiques.asp
AMANDA MORRIS was born in New York and moved to Brazil when she was four years old. From an early age, her love of words and reading assured she remained bilingual and equally fluent in both Portuguese and English. Still in Brazil, she attended Law School and decided to be both an attorney and a Law Professor. To fully pursue an academic career, she also got a Masters degree and a PhD in Law from Universidade de São Paulo – USP. She is a published author of legal books. However, after nearly two decades working with law in several capacities, Amanda felt the pull of her earliest passion: words. She has been working as a translator since 2012, mostly of legal documents. She also enjoys the challenge and beauty of literary translation.