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Suggested inside text: Yesterday you really got on my nerves

Suggested inside text: Then I don't want to be rightful

©Dan Rosandich. All rights reserved.

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The competition was tough, but the highest-rated videos over at The Video Venue during this past month were "Cross-examination of Sam Tipton" from one of the best-loved lawyer movies, My Cousin Vinny, and the absolutely spot-on commercial parody, simply titled "Lawyers," by The Brothers Larry:

Rounding out the top three is a 48-second gem from Charles Schultz's Peanuts entitled "Contracts."

To watch more of the funniest law-related videos from all over the web, join us at The Video Venue!

Congratulations to Video Venue community member Eastontario, the winner of the Funniest Legal Video on the Web Contest. He (or she) won a $50 Billable Hour Company Gift Certificate for reviewing and commenting on some of the hilarious videos at TVV. We chose Eastontario at random from among all of our community members.

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Truth be told, "the party of the first part" is hardly the most antiquated bit of boilerplate floating around these days. Insurance contracts, for example, routinely use the word witnesseth, which is merely an Old English form of the verb "to witness," as in "this policy witnesseth that . . ." Many leases also use that word, as seen in the opening line, "Witnesseth: the lessor agrees to lease said property, etc., etc. " Loyola law professor and plain-language advocate Peter Tiersma describes witnesseth as "a totemic signal that roughly means 'This is a legal contract; the following are its terms.'"

Not to deny that there is something fun and whimsical about throwing around Old English phrases. Just saying "witnesseth" is enough to summon up images of feudal lords, jousting, and great steins of beer delivered by lusty serving wenches. But on the whole, such fantasies are best indulged at your local Renaissance Faire. Witnesseth serves absolutely no purpose in today's contracts. Even if you update it to "witnesses" or "witness" it still adds nothing to the lease or insurance policy.

Similarly useless is the statement found at the end of many boilerplate affidavits (sworn statements): Further affiant sayeth naught—naught being an archaic term for "nothing." Since these words are always at the end of an affidavit, it is not as though they clarify some ambiguity. Anybody who gets to the end of the document will know exactly when you have nothing more to sayeth.

About half the time, lawyers mistakenly use the word "not" instead of "naught." Literally, the phrase "further affiant sayeth not" means "the affiant has one more thing to say: not," which would leave the affidavit with a strange hint of negation. The fact that no court in the land cares whether you write "naught" or "not" demonstrates that the phrase is pure surplusage and should just be left out entirely.

Why do some contracts have the word indenture at the top? It is because in ancient times certain contracts would be executed in two copies, each with matching notches or indentations at the top of the page. At a later time, the edges of the two pages could be brought together to show that they were part of the same agreement. "Indenture" and "indentation" both come from the Latin dentatus (having teeth), an etymology that nicely evokes the image of the serrated documents. These days, however, the word serves no purpose as an indenture is never actually indented, even when there are multiple copies. Now we have photocopiers.

The printing press exacerbated the law's natural tendency to preserve old phrases. Almost as soon as Gutenberg's first Bible rolled off the press (1455), English lawyers were putting together formbooks, that is, collections of sample contracts, pleadings, and other documents that had already passed muster with some court or another. Provided that one copied the form verbatim, no sporting judge could object. Formbooks continue to thrive to this day—even though the "books" may be CDs or downloadable files—in a language reminiscent of Henry VIII.

The only lasting benefit of the formbooks—and the boilerplate they contain—is that they afford an almost archaeological cross-section of the history of legal language. From the Old English period (pre-1100), as we've seen, there are such delicious leftovers as witnesseth and sayeth.

Much more prevalent are the vestiges of the Middle English period (roughly 1100-1500). This was the language's formative age, when Oxford and Cambridge were founded and Chaucer wrote The Canterbury Tales. The spirit of the day was one of experimentation. Lawyers and other literate folk enjoyed nothing better—or so it seems to us today—than inventing new words by putting together two or more old ones, such as the very legal-sounding notwithstanding. To this generation we owe the profusion of where- words in legal documents: whereas, wherefore, and whereunder, for example, which can still be found in legal boilerplate, as well as some interesting forms that did not survive: wherehence, whereafterward, and wheretil. Of similar vintage are the here- words: herein, hereunder, and so on.

The spellings of these words have been updated to conform to modern conventions. In the Middle Ages, spelling was a free-for-all; one writer could spell the same word several different ways in the course of a single document. A word like where had wildly inconsistent spellings in medieval England, including hwaer, huer, quare, gwhare, hwore, and even whore.

The odd invocation to be found at the beginning of many legal documents, including bonds and powers of attorney, Know all men by these presents, also comes from this period. The phrase these presents does not refer to gifts, but is a translation of the Latin presens scriptum ("this writing"). As with witnesseth, the function of "these presents" is purely ritualistic: "Look out—here comes a legal document!"

Not all Latin was translated into English. Even more than today, medieval lawyers used Latin for all kinds of documents. The scribes developed a system of abbreviating legal Latin known as "court hand." The system was ingenious; rather too ingenious, in fact, since the meaning behind some of the abbreviations was forgotten entirely. This is true of the abbreviation ss. These two little letters appear at the beginning of virtually every affidavit filed in the United States despite the fact that nobody knows for certain what they stand for. Seriously: "ss" is sometimes said to be short for scilicet ("one may know"); other suggestions include subscripsi, sans, sacerdotes, sanctissimus, Spiritus Sanctus, and sunt. Black's Law Dictionary will only go so far as to say that it is "supposed to be a contraction of 'scilicet.'" And yet, no self-respecting lawyer will draft an affidavit without it.

Members of the Precision School cling to Old and Middle English expressions as though they were life preservers in a sea of ambiguity. In one journal, a retired lawyer defended the phrase "I hereby certify, rather than plain old "I certify" because the hereby clarifies "I, right now, by this document, certify, etc." He then conceded that when a document says "I certify," there can hardly be any ambiguity as to the "right now, by this document" part. Still, said the lawyer, "it never hurts to emphasize this fact." And, he added, words such as hereby and herein are valuable—even if they are not precise—because they "demand the respect of the reader."

None of this holds water. The whole kit and caboodle of Olde English expressions smacks of needless pedantry. One suspects that people who use words like heretofore are the sort of people who say "I intend to perambulate to an adjacent hostelry for a frosty libation" instead of "I'm going to the corner for a beer."

Excerpted from the book The Party of the First Part: The Curious World of Legalese by Adam Freedman. ©2007 by Adam Freedman. Reprinted by arrangement with Henry Holt and Company, L.L.C.

click here to enlarge (large file; please be patient)

©Suzan Charlton. All rights reserved.

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Suzan Charlton is a professional cartoonist who is rumored to practice insurance coverage law as a hobby for a major Washington D.C. law firm. Her cartoons cover a wide range of law-related topics, from law school grades to law firm romance.

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Available on Second Helping of Chicken Suit for the Lawyer's Soul

Don't know much about property
Estate planning is a mystery
Don't know much about search and seizure
Heck, I slept through Criminal Procedure.

But I have a nice TV ad
And I must say, I don't look half bad
So won't you please bring your case here to me.

Never understood federal taxation
Or driving under intoxication
Never litigate a slip and fall
Heck, I hardly see a courtroom at all.

But I do wear nice Gucci suits
And I can make us both lots of loot
So won't you please bring your case here to me.

Now, I don't claim to be a legal eagle
Like some ads on TV.
But maybe by stretchin' the truth just a little,
You would bring your case here to me.

All the codes and the statute books,
I never give 'em a second look.
Criminal law is so easy for me
All my clients enter guilty pleas.

Truly I hate litigation,
But it's my only occupation,
So won't you please bring your case here to me.

If you like my truth in advertising,
Then my last request won't be surprising,
Please . . . bring your case here to me!

To view Juris Comic, click here

But when a closing's in real life,
Wiring funds engenders strife,
Since funds that long ago left here
Have somehow seemed to disappear;
One bank says the funds were sent,
But no one knows just where they went-
The other wire room flatly states
The money hasn't reached its gates.

Irate lawyers and angry clients,
Stumped by fiscal transfer science,
Simply have to sit and wait
And then, perhaps, recriminate,
Until repeated calls bear fruit:
The second bank's received the loot!
Then docs are hastily exchanged,
And folks depart as if deranged,
Pledging that in years to come,
They never will again succumb
To the agonizing wait
That wiring funds will oft create.

And yet, when next a chance presents,
They ignore each shred of sense,
Forgetting anguished pledges made
When prior wired assets strayed;
Competent, successful men
Assume it won't occur again:
Just what Murphy's Law requires
When crucial funds are sent by wires.

Fred C. Russcol, Esq. is Of Counsel to Castro & Remer, P.C. in White Plains, New York. This poem was originally printed in the Westchester Bar Journal and is reprinted with the permission of the Westchester County Bar Association.