Legal-Writing Resolutions for 2013 (Part One)

I wonder if lawyers who are drafting last-minute briefs or closing year-end business deals are approaching the frenetic holiday season with the same vigor given that the December 21 Mayan apocalypse might—as lawyers are wont to say—“render moot” all of their hard work.

If you read my columns, though, you know that I’m generally skeptical of newfangled ideas. So instead of wringing my hands until December 21 arrives, I’m going to end 2012 optimistically by making 12 New Year’s resolutions that I know will improve my legal writing in 2013. And I’m asking you to join me.

But because lawyers are loath to do anything without the requisite formality and solemnity, we must begin with an oath:

In 2013, I do solemnly resolve to improve my legal writing by:

  1. Excising “puff words.” David Foster Wallace called words and phrases like prior tosubsequent to, at this time, utilize, and individual “puff words.” Lawyers are addicted to them because they sound formal, and because many lawyers incorrectly believe that only knuckle-dragging simpletons are stupid enough to shun them. But in 2013, can’t we excise these “faddish affectations” and use simpler substitutes like before, after, now, use, and person? Even if the Mayans have sealed our fate, dropping puff words from our writing will come in handy if our 2013 year-end goal turns out to be recreating civilization instead of getting promoted.
  2. Exhuming nominalizations/buried verbs. I addressed this issue here in July, but the world has yet to conform. To recap, a nominalization/buried verb is a noun that writers create from a verb. Burying verbs is another lawyer fetish because it allows lawyers to avoid writing clear, action-oriented sentences. Starting with holiday parties, then, can we resolve to talk to our colleagues instead of having conversations with them? Can partners just decide which associates should get a bonus instead of make a decision about the bonuses? And can’t we agree that it seems much harder to make a resolution to improve our legal writing than it is to simply resolve to do it?
  3. Avoiding wordiness. Besides excising the puff words and exhuming nominalizations/buried verbs from our legal writing, let’s resolve to be less wordy in 2013. For example, instead of writing in order to, let’s write to. Instead of writing in light of the fact that or due to the fact that, let’s use because. Or how about substituting if for in the event of; or here for in the instant case; or according to for in accordance with; or besides for in addition to; or I received instead of I am in the receipt of; or Enclosed is instead of Enclosed please find herein? It is certain that (surely) our legal writing will prosper in 2013 if we relegate wordiness to the dustbin of 2012.
  4. Striking throat-clearing phrases. Both William Zinsser (On Writing Well) and Bryan Garner (The Winning Brief #38) explain why throat-clearing phrases add nothing but noise. So in 2013, let’s resolve to banish from our legal writing meaningless throat-clearing phrases like I might add, It should be noted that, With all that said, It is important to remember thatIt is respectfully submitted that, It is beyond dispute that, and There is no doubt that. If we need to pause between sentences to collect our thoughts, let’s take a break. But let’s not impose further on our already-overburdened readers by dragging them through these sentence-starting ruminations.
  5. Learning about professional typography. Nothing says I graduated from law school before the 1990s than drafting a brief or contract that looks like it was cut-and-pasted from a Clinton Administration-era document. Much has changed since then (Courier font and straight quotes, for example, are no longer vogue). And it behooves all lawyers to learn how professional typography improves the look and readability of legal writing. If you don’t own it, start by giving yourself the gift of Matthew Butterick’s indispensable Typography for Lawyers. It’s the only resource a lawyer needs to keep this resolution.
  6. Drafting contracts without shalls. Andy Mergendahl tackled the shall issue in 2011, but it’s worth revisiting because in August Bryan Garner made another desperate plea in the ABA Journal about finally retiring shall from legal writing. Garner noted that (with one exception) the federal civil rules no longer contain shalls. But if you’re still enamored with shall, here’s a statistic to consider: In 2009, Professor Joseph Kimble of Cooley Law School identified more than 1,600 appellate cases where the court had to resolve the meaning of shall. What a waste of client money. Shall we then resolve in 2013 to play our part in ridding legal writing of this nefarious word?

(photo: http://www.flickr.com/photos/lwr/71774909/)

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  • http://www.koncision.com Ken Adams

    Ah, more misinformation on use of “shall” in contracts! I make my living writing, speaking, and consulting about contract drafting. I’ve studied use of “shall” extensively, and I’ve concluded that disciplined use of “shall” is the way to go. I’ve explained my reasons at length; see my book “A Manual of Style for Contract Drafting” (3d ed. forthcoming February 2013).

    Regarding Bryan Garner’s objections, see the following blog post: http://www.koncision.com/revisiting-use-of-shall-in-contract-drafting/. The fact that the federal civil rules don’t use “shall” has no bearing on its use in contracts. And regarding the caselaw on “shall,” the vast majority of the cases either relate to use of “shall” in statutes or relate to issues that wouldn’t be resolved by dispensing with “shall.”

    • http://lawyerist.com/author/samglover/ Sam Glover

      I’m not sure how effective it is to tell us to go read a book that has not yet been published. Besides, you might generate more interest in your book if you had a substantive point instead of just delivering a sales pitch.

      • http://www.koncision.com Ken Adams

        My book has been around since 2004. I mentioned it because it’s where I discuss this topic at some length. And I mentioned the forthcoming third edition because it contains an expanded version of that discussion.

        I did in fact make three substantive points in my comment (one of them via the post I linked to). But instead of addressing those points, you and your colleague chose to impugn my motives—always an easier option. Perhaps you felt goaded to it by my referring to this post as “misinformation.” But I think that’s a fair description. And there’s nothing ad hominem about it.

    • http://www.linkedin.com/in/matthewsalzwedel Matthew Salzwedel

      Despite the sentence-ending exclamation point, the link to your business website doesn’t support your claim that I’ve given readers “misinformation on the use of ‘shall’ in contracts.”  We simply disagree about whether lawyers should ever use shall in contracts. 95% of lawyers will get in trouble using shall; that in theory you might be able to train the other 5% to use it only in business contracts and only “to impose an obligation on the subject of the sentence”  ignores reality. What’s more, if I’m correct one of your objections to substituting must for shall in business contracts is that must comes off as bossy. My experience suggests otherwise.

      • http://www.4alaw.com/business/ Terry.A

        I agree!
        As British lawyer my view is that ‘must’ suggests a requirement as indeed does ‘shall’ but if I am drafting a contract or a court order, I would want to use ‘must’ instead of ‘shall’ and if ‘must’ comes across as bossy it ‘must’ have been my intention for it to come across in that manner. :-)

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      Ken, I’ve spent 3 years doing nothing but negotiating and drafting business contracts. I’ve read extensively on the subject, and I appreciate your interest. But it does seem that your comments have been driven largely by an interest in pimping your books. Can “shall” be used properly? Yes. But it isn’t needed and all legal drafting would be better without it. We’re not buying what you’re selling.

  • http://FishtownLaw.com Leo Mulvihill, Jr.

    Shall is ambiguous. “Must” is not. “Will” is also not ambiguous. Why use ambiguous language unless the ambiguity is intentional?

  • http://www.passthebaton.biz Susan Gainen

    Thanks, Matt. I had a long-running heated discussion with a particularly stubborn boss who insisted that “utilize” mean a better kind of “use.” Arrgh.

  • http://www.JohnGearLaw.com/ John Gear

    I studied this intensively (and perhaps excessively) after I left the navy and ended up in a job writing policies and procedures (including emergency preparedness and radiation safety procedures) for a US Department of Energy contractor, at a site handling nuclear wastes.

    They loved “shall” there. Before I worked there, they liked to write policies that aped the US DOE style, with liberal shalls on every page. Worse, it became like the Pledge of Allegiance and loyalty oaths in “Catch-22,” as the overuse of the imperative led to an escalation to an absurd degree (“this time we REALLY MEAN IT”).

    It got so bad that you’d get these procedure drafts with SHALLs throughout. Instead of “Open the door. Insert the key in the ignition. Adjust mirrors. Start the engine . . . ” they would write “The operator shall open the door, observing all necessary precautions to avoid interfering with oncoming traffic. The operator shall insert the proper key in the ignition. The operator shall adjust the mirrors, ensuring that etc. etc.” It was horrible.

    That was my introduction to the legalistic mind (rather than legal mind). Pretty much the whole thing was about “How are we going to bust these guys if they don’t do what they’re supposed to” — a vicious battle between the union guys and the suits, with the suits trying to lard up the policies and procedures with imperative language so that they could hammer the union guys with it later.

    When I later went to law school, I saw people drafting contracts with the same mindset — instead of clarifying the agreements, it was all about setting spring-gun traps for each other, all the better to bill hours with. And vague tools like “shall” are a mighty weapon in that struggle, because it’s inevitably a source of imprecision. I shall never use it willingly.

  • http://ca.linkedin.com/in/mlazarus Michael Lazarus

    Lawyers are for the most part not taught, and too often fail, to recognize the complexity of disciplined ‘legal’ drafting. Your comments serve to (hopefully) stimulate thinking about the subject !! The generality of your comments belie the complexities of ‘legal’ drafting. For example, using ‘person’ in place of ‘individual’ is not “puff”; rather, it is a matter of law. In Ontario Canada (as is many common law jurisdictions) our Business Corporations Act, Corporations Act and Securities Act define basic words like ‘person’ and ‘individual’. It is surprising to me that many lawyers are not aware of those definitions. When drafting in the corporate area statutory definitions have to be burned into the drafter’s mind. Dumbing down wording should always be a primary objective PROVIDED you know the law.