What is legalese? The New Oxford Dictionary defines it as "the formal and technical language of legal documents that is often hard to understand."

Why would a professional write a document that is intentionally difficult to understand? A lawyer, who else, might argue that legalese provides precision and creates formality. Technical language is intended to define rights and obligations without room for misinterpretation.

Legalese has long been condemned from every quarter, including the U.S Supreme Court. The late Justice Antonin Scalia was once asked what characterized good legal writing. He declared, "(b)eyond pure literacy, avoid legalese." He suggested, "A good test is, if you used the word at a cocktail party, would people look at you funny?"

However, Scalia was the same guy who wrote in his dissent of the decision striking down the Defense of Marriage Act that the majority opinion was "legalistic argle-bargle." Not sure that argle-bargle would pass the cocktail party test. Argle-bargle means "imbroglio," excuse me it means "fight."

Legalese has been an increasing object of derision. During World War II, Maury Maverick, a U.S. Congressman from Texas and chairman of the U.S. Smaller War Plants Corporation, wrote a memo banning "gobbledygook language." Maverick's word has been accepted into the American lexicon. Merriam-Webster defines gobbledygook as "speech or writing that is complicated and difficult to understand."

To put legalese into context, here is what the blog "Words to Deeds" believes the children's rhyme Jack and Jill would sound like if written by lawyers: "The party of the second part hereinafter known as Jill ... Ascended or caused to be ascended an elevation of undetermined height and degree of slope, hereinafter referred to as 'hill.'"

What is the big deal about legalese? Nobody reads their mortgage or their credit card agreements. If an individual has a contract to read or understand, they bring it to a lawyer. Is legalese about precision or job security for lawyers?

The greater concern is that obtuse language extends beyond contracts and agreements, right to the heart of liberty and freedom. A defendant charged with a crime is entitled to a lawyer - a competent one. The accused is also entitled to a jury of his or her peers and here is where it gets tricky.

Before a jury retires to deliberate the fate of the accused, the judge provides those jurors with instructions to assist in their decision-making. Unfortunately, those instructions are legalistic and often difficult to understand.

A report published in The Trial Expert, a publication of the American Society of Trial Consultants, found, "the reading levels of instructions are frequently at or above the twelfth grade, a result that is inconsistent with the average reading level of the American adult."

The report continued, "Considering that less than fifty percent of adults possess the basic skills and knowledge necessary to read and comprehend moderately difficult reading passages, it's not likely they are able to synthesize the complex language present in jury instructions."

That is a mouthful, but simply put, one in two jurors is confused by the language used to help them decide the fate of a fellow citizen.

Megan McAlpin, a professor at the University of Oregon School of Law, told Jack Hamann of The Writer, "I think there's a desire to sound smart. But you sound smarter if you can take something complex and make it clear to anybody.' Albert Einstein, a pretty smart guy, once said, "If you can't explain it simply, you don't understand it well enough."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Photo credit: Romain Dancre at Unsplash