Legalese is Scary (and it shouldn't be)

Imagine you are sitting at your computer checking your email. Never mind, it's current year.

Imagine you are checking your email on your phone as people do. You notice an email from a law firm that has a file attached. It's perplexing, but a part of the email catches your eye. The footer says in no uncertain terms that the email is confidential and that you must let the law firm know you received it in error and then you must delete it. For added effect, the footer also seems very official in its wording and style.

What do you need to do?

Well, it would be nice of you to follow the directions, but you aren't beholden to it. You never agreed to keep anything confidential, so why do you have to?

This type of footer is commonplace for most law firms. And it annoys me to no end because it isn't a "real" obligation. It's a request masquerading as something with consequences. And people are genuinely scared by these requests because they trust the attorney to shoot straight. The end result is that the attorney gets what they wanted because they effectively duped the public.

Pictured: A photo that came up in my stock photo search when I queried "lawyer". Oof.

I've written on this type of thing previously in a different context (which you can check out here), but haven't written at length on why this kind of thing is my pet peeve.

The first reason is that, effectively, this is exploiting people's non-understanding of legal agreements for an entity's own benefit. And it isn't just present in law firm emails; many attorneys are also guilty of this (some much worse than others). It can be easy for an attorney who needs something to flex the "lawyer muscle" to scare another party into submission. And, again, this works to a certain degree because legalese is scary (see, I worked the title in there).

The lawyer equivalent of "do no harm" is that you should not trick laypeople into doing what you want. And that's what it feels like to me. When I see that footer on a law firm email, it feels like the profession is being dragged through the mud.

Secondly, when the public is given incorrect legal advice, it can lead to a fundamental misunderstanding becoming commonplace. A (now moot) point I liked to bring up was that the general public seemed to think that the SCOTUS case governing abortion was Roe v. Wade until the recent Dobbs decision. This is false; since 1992, the governing case was actually Planned Parenthood v. Casey. This may seem like a nitpick, but if you look up the cases, the tests created for both are completely different (Roe had distinct rules for each trimester of pregnancy while Casey was a looser "undue burden" standard). If you didn't know any better, you would think that Roe is still good law and may think that the Roe test is the law of the land.

I had an opportunity to attend a small seminar with a judge who was running for office elsewhere (I think it was something Congressional, but I'm not sure). During her presentation, she stated that it was her intention to "protect Roe" or something like that. Me, being the troublemaker that I am, pointed out that this was technically incorrect. The judge agreed that Casey is the correct standard but that Roe was what the public knew it as, so she went with that. Perhaps this is true, but the judge was further perpetuating this incorrect understanding by using that terminology in her speeches. It would be just as effective to say you are "protecting abortion" or something like that instead of using the old case name.

Pictured: I don't think that name means what you think it means.

Another scenario that also comes up that irritates me is when non-lawyers argue that things are a certain way when they clearly are not. An example of this happened to my wife and I at an aquarium. One of the experiences that they were selling tickets to was to SCUBA in their shark tank. And it looked cool. So we signed up. We were handed the typical waivers and safety rules that go along with this sort of activity. My wife indicated that she had allergies. It was clarified that the allergies my wife had was not what the questionnaire was getting at. When we brought this up to the staff, they told us that "well, once we see it, we can't let you no matter what."

For the sake of clarity, this is not how contracts work. There is no "once you see things" rule that keeps people from dealing with misunderstandings. But, because of the adhesion to this fake rule, we were turned away.

Overall, this boils down to a dislike of people using the law to "win" when the rules actually don't mean that.

Rant over.