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The ‘open sesame’ mistake

Lawyers are notorious for their use of jargon, or ‘legalese’ as it is sometimes known in this context.

There are really two reasons for lawyers’ use of jargon, one good and one bad. The good reason is that law, like any other complex technical area, requires its own language. Without some specialised vocabulary communication would be long-winded at best, impossible at worst. The bad reason is that lawyers, like other technical experts, use their jargon to make themselves seem cleverer, more important and generally more marvellous than they actually are. The strategy is the same as that of the sharp mechanic who charges for a wholly unnecessary repair by referring mysteriously to fly-wheel sprocket disjunctions.

Non-lawyers use legal jargon for much the same reasons. Many HR managers, for example, are highly familiar with concepts like indirect discrimination or TUPE transfers and will use the appropriate language. And many dismissing employers will seek to bolster their decision (and themselves) by reeling off a string of jargon that they may or may not understand.

However, there is a common third reason that non-lawyers slip into legalese: the open sesame mistake. ((a phrase coined by Kermit Roosevelt in In the Shadow of the Law))

The open sesame mistake treats the jargon not as a method of communication, but as a magical incantation. People who fall into it see the tribunal not as a (more or less) rational entity that needs to be persuaded, but a genie that cam be commanded by anyone who knows the magic words. They struggle in vain to find the right combination of Latin, legislation and case references that will spur the genie into action.

The open sesame mistake is common, because to many lay people the tribunal’s actions seem incomprehensible. A lawyer utters a series of obscure phrases and the tribunal agrees with him. They talk to the Chairman in plain English and nothing happens (or worse, the tribunal becomes annoyed). It is only natural to think that the difference is in the language used.

This is to misunderstand what is happening. Despite the system’s inevitable shortcomings, what the tribunal wants to do is understand the parties’ situation and apply the law to it. The way to succeed in tribunal is to communicate with the members of the panel. Advocacy is probably 80% just getting the tribunal to understand what your case is, and only 20% convincing them that you are right. This is because until the tribunal understands your case, they will not be able to agree with it.

In so far as technical language helps the tribunal understand you, it is useful; but there is simply no magic sequence of words that will ensure success. A party who expresses themselves clearly, but without technical language (and has a good point to make) will succeed over one who speaks obscure legalese (and inaccurate legalese is even worse).

If the tribunal is siding with the person speaking legal jargon it is either because they have the stronger point (in which case there is little you can do) or because you are failing to communicate your point effectively. ((Admittedly, sometimes it is because the tribunal is wrong)) The solution to this is to communicate more effectively. This might involve mastering and deploying technical language, but it emphatically does not involve scattering a random selection of half-remembered words through your language in the hope that something will catch the tribunal’s eye.

A key sign that you may be falling into this mistake is an excessive concern with the ‘right’ way of saying, writing or doing something. In most cases there is no single ‘right way’, but any number of possible ways.

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