Lawyers As Professional Writers

I really like Wayne Schiess’ Legal Writing Blog. This entry features a guest “blogger” Cheryl Stephens of Building Rapport, a blog about Plain Language.  I really enjoyed her passage: she urges lawyers to view themselves as professional writers, often drafting more pages in a day “than a novelist hones in a week.”

Trumpeting a refrain similar to the tune hummed by Arthur Miller in my prior blog entry, Ms. Stephens laments the poor quality of writing and reasoning exhibited by first year associates. Ms. Stephens presses these new lawyers to see themselves as “publishers” and advises them to adhere to the principles of Plain Language – “good grammar, standard English, no jargon, and well-formed sentences expressing well-formed thoughts.” Check out her new book, Plain Language Legal Writing.

After more than 17 years as a professional writer, I find myself still actively thinking about my writing on a regular basis. I would like to claim that perfect grammar and precise communication flow naturally, reflexively and abundantly for me, but the truth is that even the best writers must tend to their product no matter how skilled they are or believe themselves to be. Take a writing course, read examples of powerful persuasive writing, start a journal, or maybe even a blog. If you wish to improve your writing, take charge of your process, seek opportunities to rise above bad habits and avoid complacency. Your clients, your peers and your tribunals rely on your words.

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Legal Writing: What Does It Mean?

After twenty years or so of close affiliation with the law, I find myself taking the process of legal research and writing almost for granted. It has become like breathing for me: necessary to my practice and nearly reflexive. In considering topics, I find myself looking at my old friend through the semi-scratched lens of experience. I knew I should have used that lens cap!

I jump-start my examination by reviewing a definition. From Wikipedia, the on-line sovereign of wikis, the following definition of “legal writing” is found:

Legal writing is a type of technical writing used by legislators, lawyers, judges, and others in law to express legal analysis and legal rights and duties. Its distinguishing features include reliance on and citation to authority, importance of precedent, specialized vocabulary or jargon, and a tendency toward excessively complicated grammar and overformality.

(Emphasis added). I chuckled when I first read this. The first line seems fair enough: there is no question that it is a form of technical writing and the entry adequately identifies those who are most likely to use it and its intended expression. However, the “qualities” bolded above are less than favorable in any form of writing. Whatever “excessively complicated grammar and overformality” might mean, they just cannot be positive attributes.

While I do not take issue with most of what is written in the entry that follows the quoted definition, I spent some time on a subheading titled “Legalese”, which opens with the following assertion:

Legalese is an English term first used in 1914[ ] for legal writing that is difficult for laymen to read and understand. The implication being that said abstruseness is deliberate for excluding the legally untrained and to justify high fees. Legalese, as a term, has been adopted in other languages.[ ][ ] Legalese is characterized by long sentences, many modifying clauses, complex vocabulary, high abstraction, and insensitivity to the layman’s need to understand the document’s gist. Legalese arises most commonly in legal drafting, yet appears in both types of legal analysis.

(Emphasis added). The omitted footnote references can be found at wikipedia.org. The perception is that legalese is abstruse, its abstruseness is deliberate and its purpose is to exclude the “legally untrained” and to “justify high fees.” It also appears to be characterized by an insensitivity to the layman’s need to understand the gist of a given document. Nope, nothing good here either.

Why are legal writing and legalese so closely intertwined at the definitional level? There are many who chafe against such poor writing. The entry references the Plain Language Movement, an effort by two organizations to reduce or eliminate the use of language that is needlessly complex. One of the organizations is PLAIN. The other, Clarity, an English site, specifically targets legal language. Obviously, members of the legal profession must readily fall into the trap to be targeted by a whole movement.

Is there a purpose for legalese in legal writing? There are a couple of seemingly “tongue in cheek” arguments for its use in the Wikipedia entry. However, I can think of no reason to support the use of language that is needlessly “jargonized”, employs excessively complicated grammar and overformality and is characterized by abstruseness and insensitivity to the needs of lay people, this group necessarily comprising the larger part of one’s client base. Judges and their law clerks cannot possibly look forward to reading such language, despite being armed with a legal background. How can it possibly serve one’s cause to write in a complicated and abstruse fashion?

The linguist William Lutz’s take on legalese’s first cousin “doublespeak” is quoted in the Wikipedia entry on the Plain Language Movement. Lutz references George Orwell’s novel Nineteen Eighty-Four to illustrate his point that those who rule the language rule. Lutz also indicates that the use of overly complicated language is meant to make others feel inferior.

I have a different take on the use of “legalese” in legal writing. In my humble opinion, legalese merely serves as a crutch for the lazy drafter, a means of making a point without making a point. I also believe that the use of legalese, particularly in the mode of the quoted definition, may reveal the lack of a firm grasp on the argument or subject matter. The writer might even be quoting or lifting the legalese from another document without clearly understanding its import (if such import can be gleaned from its excessively complicated abstruseness). While I do not generally like absolutes, I feel comfortable stating that there is always an easier way to express a passage initially written in legalese. I like this example of a proposed rewrite of the Federal Rules of Civil Procedure, taken from Joseph Kimble, a Thomas Cooley Law School professor and editor-in-chief of The Scribes Journal of Legal Writing, as well as the author of Lifting the Fog of Legalese: Essays on Plain Language, at Writing Clear and Simple:

Current Rule 8(e)(2)

When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.

 

Restyled Rule

If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

To further assist the drafter in simplifying and clarifying his or her point, Professor Eugene Volokh of UCLA Law School has compiled a handy chart of what he terms “common clunkers” and their more effective replacements.

To be sure, there are clear cases of “abstruseness” and those that are merely borderline. There also are many examples of clear legal writing and a whole movement devoted to promoting that cause. I am certain that “legalese” and “legal writing” can be separated, Siamese Twins-style; the wheat can be retained without the chaff. I am aware of no good reason for failing to take another pass through your “masterpiece” to ensure that what you wrote actually can be understood by any potential member of your audience. Besides the cost savings in ink and paper and the ability to keep your document within a maximum length, there is the always the advantage of crafting an argument more likely to sway your tribunal and slay your opponent. It is difficult to win an argument when no one can understand what you are saying.