Contumacious

An adjective that can be used to describe actions.

A contumacious action is an action that, in law, most probably denies a legal right wrongfully.

Examples:

• We consider X's action to be contumacious.
• The judge declared Y contumacious.

Substantive law and Procedural law

Substantive law is the branch of the law that establishes legal principles, and creates rights. These rights can also be limited, and their limitations should be specified in applicable law.

The laws that govern the validity of a contract are substantive, for example.

Procedural law is just that, law which refers to procedures. For example, if someone breaches a contract, you need to look at substantive law to understand the right that has been infringed and then procedural law to understand how to proceed with the case in a court of law.

To read a definition of substantive law, go here.

For a definition of procedure, go here.

Lemon Law

The word 'lemon' is sometimes used in English to identify something that does not function as well as it should do. Usually because the product has some fault. A product which often turns out to be a 'lemon' is a car, and in the US, consumer protection law which is designed to protect the rights of those who have bought defective cars is referred to as 'Lemon law'. Now you know.

There is more information here.

25, 150.

Twenty five is a number that should become part of the lawyer's psyche. This number refers to the average length of a sentence - not one of those things a judge hands out - but one of those combinations of words that people write. Lawyers write lots of these things.

Why is 25 so important to lawyers? Well, if you write a sentence that is more than twenty five words in length, it becomes difficult to understand. This means that a sentence that is longer than 25 works can be easy to misunderstand. Judges and clients may start asking difficult questions about what exactly you are trying to say. According to Garner*, you can write sentences of up to 35 words in length sometimes, but your average sentence length should not exceed 25 words. Ideally, you should be able to write paragraphs that contain sentences with an average of 20 words, and still be able to say what you need to say.

Now, the next number, 150. This refers to the maximum number of words a paragraph should contain. Really good writers can actually produce effective paragraphs of only 100 words or less in length.

What does this mean for Italian lawyers? It means you can write shorter, simpler sentences. This means fewer errors, fewer corrections, and happier senior partners.

25 - average number of words in sentence.
150 - the maximum number of words in a paragraph.

And, yes, it is possible to respect these rules, but you will need to work hard to achieve these goals.

*Bryan A Garner, Legal Writing in Plain English, University of Chicago Press.

Plain English - l'inglese chiara

I do not know how many Italian lawyers have heard the term 'plain English', so I shall explain what it means. Well, 'plain English' is English written clearly. As one plain English advocate put it 'so your mother can understand it'. (This assumes, of course, that your dear mother is not a lawyer!)

Lawyers often forget that their clients are not always legal experts. Indeed, Italian law firms often use English as a lingua franca when dealing with non-mother tongue English clients.

Such clients will appreciate opinions and advice letters that are written in a style that avoids, wherever possible, what has come to be known as 'legalese'.

For Italian lawyers plain English is most probably easier to use than legalese, since it advocates the use of everyday words and phrases instead of complex legal phraseology. That is, words you probably already know. An other clear advanage of plain English is that it can also help you avoid ambiguity in legal documentation.

Use a plain English style and your non-mother tongue clients will be easier to work with. This means that they may well use your firm's services in the future.

Isn't that alone a good reason to encourage the use of plain English in Italy?

Now, how about a plain Italian campaign?

Shall - a horrible little word, legally speaking.

The word 'shall' is often used in legal documentation. Or, I should say that the word 'shall' is often misused in legal documents.

'Shall' means 'have a duty', an obligation to do something. But in legal documents the real meaning of the word 'shall' can become confusing. In various court cases 'shall' has been held to mean: may, must, will and is (Source: Legal Writing in Plain English, Bryan A Garner).

When you draft a legal document, avoid 'shall'. Do not use this misleading word. Use, instead, 'must' for obligation and 'may' to indicate that someone can decide to act or not. Note that in contractual documents, 'will' is more often used than 'must' to express obligation. (Although 'must' is much clearer, in my considered opinion.)

You have been warned. You shall obey.

Words lawyers adore

From my previous career, I learnt that 'probably' was a word that lawyers loved to use.

Example: The judge will probably hold that X can claim damages for non-performance.

Another word that is commonly used by lawyers is 'probably's' sister, and it is 'probable'.

Example: It is probable that the action will be successful.

These words are often preceded by the adverb 'highly' - 'altamente' in Italian.

Then there are two other words beloved of lawyers: 'may' and 'might'. And guess what? Yes, they imply probability. They are also very similar.

Example: The court might not decide in our favour. They may agree to the modification of Clause 1b of the contract.

I could probably provide you with many more examples. But I might bore you. In fact, it is highly probable that I will. So, I will not.