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Necessary Evils: Clients and Witnesses
Jerry Buchmeyer, 1981

The "Sit-Down Lawyers" need not feel that their respective (but respectable) areas of specialization have been overlooked in OTEQI,HLW.(1) Legal prose in these areas — such as corporate and business law; wills, estates and trusts — can certainly be just as stilted, unintelligible, and redundant as that in other fields.

For those who practice corporate law, The Fable of the Young Lawyer Who Spoke English:(2) Once there was a Young Lawyer (Y’g. L’r.”) who actually spoke English. While drafting his very first contract for his very first client (F’st. CI’t.”), it occurred to him that most people speak and write in the English language. "Why shouldn’t lawyers?” he asked himself, ‘Why shouldn’t they, indeed?” When the client returned to review the contract (the other party, of course, was Jehoshaphat McSchnitzleberger)

“The Y’g. L’r. showed the F’st. Ci’t. a contract written in the English language. Omitted and eliminated were the over-and-aboves, the wherefores, the due-and-owings, the aforesaids, the hereinafters, the provided-howevers, the and/ors, the thereins, thereofs, whereins, theretofores, the under-and-by-virtue-ofs, and the other quaint idioms that make legal jargon so cryptic.

“ 'But,’ gasped the astonished F’st. CIt., ‘even a child could understand this’ ‘Of course,’ said the Y’g. L’r, resplendent with the pride of creativeness. ‘That’s what you wanted, isn’t it?’

“Certainly notl’ exploded the F’st. CI’t. angrily. ‘That means McSchnitzieberger can understand it. If he doesn’t know what it means, he'll take my word it means what I say it means, rather than pay a lawyer a fee to explain it to him. If you can’t draw a real contract, I’ll get a Notary Public to do it for a dollar.”’
So the Young Lawyer prepared a new contract — using a form that had ‘stood the Acid Test of Time and the scrutiny of countless generations of scriveners,” with much hereinbefore provided whereas — copied on legal-size parchment with a 3” gilt seal in the corner. The client was pleased: “‘I don’t know what it means, of course, but then neither does McSchnitzieberger. He’li take my word that it means what I say it does, because he’s too tight to consult a lawyer.”’ And the Young Lawyer never again drafted a contract that a client could understand.(3)

Next, for the Probate, Trusts, & Etc. attorneys, the tale of Mrs. Sarah Stout, the Last Will of Mr. Buffin, and the Draft Affidavit:(4) Mr. Buffin died at 89, a bachelor, but his Last Will and Testament could not be found and this annoyed the heirs, who had Great Expecta-
tions. The laundress, Mrs. Sarah Stout, finally found the missing document — but there was stili much consternation because the first attesting witness was dead and the name of the Second Attesting Witness was illegible. Again, Mrs. Sarah Stout came to the rescue, and told the Solicitor In Charge of Mr. Buffin’s Affairs that: she remembers about three years ago poor Mr. Buffin saying for her to come and sign her name next to his Clerk’s and so she did and he did too and it was a damp and foggy day and she noticed Mr. Muffin had a nasty cough but she guessed he wasn’t really ill because the poor Clerk was the first to go. When Mrs. Stoul received the affidavit she was to execute:
“in successive paragraphs it related that Mrs. Stout had Long been acquainted with the testator and his Clerk; that she well remembered the 4th November 1927, as the weather was peculiarly inclement; that on that date the testator requested her to witness his last will and testament; that the testator also informed her that his said Clerk would be the first attesting witness; that she had thereupon signed her name in the presence of the testator and of his said Clerk, and that his said Clerk had likewise signed his name In the presence of herself and of the testator; that she recognized the document (now produced to her and Marked ‘S.S. 1' as a copy of the document which she had so signed together with the said Clerk of the testator that the testator to the best of her belief was on the said date of sound mind and of testamentary capacity; and that she was informed and believed that the said Clerk of the testator was now deceased.”
Mrs. Sarah Stout read, and then reread, her Affidavit with great admiration — and she was so impressed with the purity of her language, and so delighted with the perfection of her writing style, that “she forthwith made up her mind to pursue a literary career.

 


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