Is it Time for Contractions in Legal Writing?

Contractions

When I write this column, I try to focus on basic legal-writing principles. But there’s one controversial legal-writing subject that I can no longer avoid: how most legal writing could benefit from contractions.

It’s true that contractions aren’t generally accepted in legal writing. But it’s also true that they don’t deserve the label of uneducated vulgarisms, either.

So permit me a brief diversion to explore the controversy over contractions in legal writing. And at the end of the column, you can tell me what you think about the subject.

Contractions Have a Storied History

Among the popular misconceptions surrounding contractions is that they’re a recent invention and typify the language of the uneducated, lower-socioeconomic classes. But as Patricia O’Conner and Stewart Kellerman point out in Origins of the Specious: Myths and Misconceptions of the English Language, contractions have existed in various forms since Old English (i.e., before 1150).

Writers continued to use contractions during the Middle English (1100–1500), Early Modern English (1500–1800), and 19th-Century English (1800–1900) periods. And during these periods it wasn’t just the lower-socioeconomic classes who used them: William Shakespeare (Hamlet: early 1600s), Jane Austen (Sense and Sensibility: 1811), and Charles Dickens (Hard Times: 1854) used them, too.

Beginning in the early 18th Century, however, some writers began objecting to contractions in written prose. For example, Jonathan Swift pilloried contractions in The False Refinements in Our Style (1710). In that essay, Swift lamented that the English language had become “overloaded with monosyllables, which are the disgrace of our language.”

O’Conner and Kellerman say that “by the late eighteenth century, contractions were in disgrace, tolerated in speech but an embarrassment in writing” because elites on both sides of the Atlantic thought them “harsh-sounding, vulgar, low class, ill mannered, or overly familiar.” But this elitist view didn’t stop Mark Twain from using hundreds of contractions in his late 19th-Century classic The Adventures of Tom Sawyer (1876).

The popular aversion to contractions persisted until the early 20th Century, when some usage authorities began to resuscitate them. H.W. Fowler, for example, used contractions without qualification in A Dictionary of Modern English Usage (1926). In The Art of Readable Writing (1949), Rudolf Flesch argued that contractions were “the handiest and most conspicuous device” for plain writing. And although Wilson Follett labeled some contractions “colloquial” in Modern American Usage (1966), he didn’t outlaw them.

Modern Usage Authorities Generally Recommend Contractions

In the late 20th Century, more usage authorities began pointing out how contractions could benefit a plain, conversational writing style.

In Writing with Style: Conversations on the Art of Writing (1975), John R. Trimble recommended that writers occasionally use contractions because “they’ll help you unbend, let your readers relax as well, and free up your writing voice.” But Trimble cautioned that contractions “are like kisses: bestowed too freely, they lose their effect, in fact seem cheap.”

In On Writing Well (1976), William Zinsser echoed Trimble’s advice: “There’s no rule against [using contractions]—trust your ear and your instincts. . . . Your style will be warmer and truer to your personality if you use contractions like ‘I’ll’ and ‘won’t’ and ‘can’t’ when they fit comfortably into what you’re writing.”

More recently, in Rhetorical Grammar (2003), Martha Kolln notes the George Orwell used don’t in Politics and the English Language, and says that some contractions are acceptable even in formal contexts:

Contractions help to close the distance between writer and reader. . . . If you think about—and listen for—sentence rhythm you’ll understand the contribution that contractions make in eliminating or greatly diminishing a syllable. . . . The advice against using contractions that you may have heard or read simply does not reflect actual usage. Even fairly formal written prose commonly includes the contracted not, as [Orwell] illustrates.

Bryan Garner: Contractions are acceptable in legal writing, or not.

Bryan Garner has equivocated on whether contractions are acceptable in legal writing.

In his early legal-writing texts, Garner argued that contractions weren’t appropriate in legal writing. But in the early 2000s — e.g., in Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002) — Garner recanted.

In The Elements of Legal Style, for example, he said that “[y]ou might well have heard that contractions don’t belong in legal writing. The view seems to be that they aren’t professional. But that’s just a shibboleth. The decision whether to use a contraction often boils down to this: do I want to sound natural, or do I want to sound stuffy?” He gave similar advice in Garner’s Dictionary of Legal Usage (3d ed. 2011): “Here’s the test: If you would say it as a contraction, write it that way. If you wouldn’t then don’t.”

In Making Your Case: The Art of Persuading Judges (2008), which he co-wrote with Supreme Court Justice Antonin Scalia, Garner disclosed that Trimble’s influence led to his about-face on contractions. But in Making Your Case, Garner still warned legal writers to use contractions judiciously — “only when, in speaking, one would most naturally use a contraction.”

Adding unnecessary confusion to his position, though, Garner seemed to hedge his endorsement of contractions in Garner’s Modern American Usage (3d ed. 2009): “Many writers, especially those who write in formal situations, feel uncomfortable with contractions. And perhaps contractions don’t belong in solemn contexts.”

So much for clarity.

Some Judges and Lawyers Use Contractions

Lawyers might be shocked to hear that some federal judges occasionally use contractions in their opinions. What’s more, these judges are considered excellent opinion writers. These judges include Chief Judge Frank H. Easterbrook and Judge Richard A. Posner (7th Cir.), Chief Judge Alex Kozinski (9th Cir.), Judge Neil M. Gorsuch (10th Cir.), and Judge Robert L. Miller, Jr. (N.D. Ind.).

Consider Judge Posner’s euphonious use of won’t — but how he avoids a clunky shouldn’t — in his opinion in In re Text Messaging Antitrust Litigation: “Such appeals should not be routine, and won’t be, because as we said both district court and court of appeals must agree to allow an appeal under section 1292(b).”

But you won’t find contractions in Justice Scalia’s opinions. In Making Your Case, he calls contractions “marketplace” vulgarisms, and warns lawyers that judges might view them “as an affront to the dignity of the court. . . . And those judges who don’t take offense will not understand your brief, or vote for your case, one whit more readily. There is, in short, something to be lost, and nothing whatever to be gained.”

(Aside: Perhaps only Justice Scalia can get away with using a contraction — don’t — when instructing lawyers not to use contractions such as don’t.)

But despite Scalia’s protestations, there’s no evidence that his Supreme Court colleagues — or, for that matter, any other judges — share his dim view of contractions. In fact, according to Ross Guberman some well-known Supreme Court appellate lawyers— e.g.Miguel Estrada — use contractions in briefs.

Do Contractions Have a Future in Legal Writing?

As I explain above, there is scant support for using contractions in briefs, and no support for using contractions in ultra-formal legal documents such as contracts or wills. But as Judges Easterbrook, Posner, Kozinski, Gorsuch, and Miller show in their opinions, contractions can make legal writing lively, conversational, and interesting.

So why don’t more judges use contractions, or at least tell us that they don’t agree with Justice Scalia that contractions are “an affront to the dignity of the court”? I suspect there are three reasons for this judicial silence:

  1. Judges might not have thought about the issue, much less formed an opinion either way.
  2. Like lawyers in general, judges often follow the that’s-the-way-I’ve-always-done-it principle. Under this principle, there’s no reason to change accepted practice if the proposed benefit is seemingly trivial. In other words, why endorse contractions if the change would save only a few syllables?
  3. For those judges who understand the issue, there might be a fear that novice legal writers will invent new or start using awkward contractions such as I’d’ve, should’ve, and who’re, instead of sticking with basics such as don’t, doesn’tisn’twon’t, or can’t. To paraphrase Zinsser, judges might fear that most lawyers don’t have the ear, instincts, or judgment to use contractions properly.

For what it’s worth, given the expanding plain-English movement in legal writing I’ll be surprised if 20 years from now most judges and lawyers don’t occasionally use contractions in opinions and briefs. As for using contractions in contracts, however, it’s unlikely that they’ll gain widespread support because their benefits — improved diction and euphony — are less critical in contract drafting.

What is clear is that there’s little empirical evidence measuring the prevalence of contractions in legal writing. So I’d like to know what you think about them. By answering the poll below — which might be the first of its kind — you can help further shape the debate.

[polldaddy poll=6955908]

(photo: http://www.flickr.com/photos/chowd/4517880972/)

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

    Having written no briefs since 1985, I shall decline to opine on contracts in brief-writing.

    I oppose contractions in formal correspondence for the sake of clarity and because the writer runs the risk of offending a reader who might share Justice Scalia’s perspective on them. This would be a needless risk to take when writing on behalf of a client.

    Contractions in contracts? Sounds like fertile grounds for litigation.

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

      Susan, please explain why contractions are unclear, given that anyone who speaks (and, one would hope, also listens) hears them every day. Also, how does using words as common as contractions increase the risk of litigation, particularly as opposed to the legalese that muddies typical contracts?
      This is a central point of contention: which creates transparency, commonly used words or opaque legalese? For example, does your use of “shall” in your first sentence increase or decrease transparency?

  • http://www.linkedin.com/in/theodorehasse Ted Hasse

    Some people responded to this poll: “I wouldn’t use [contractions] even if they become generally accepted.” I have to believe they would reconsider in certain circumstances — for example, when writing to persuade someone who prefers plain English and the natural use of contractions.

    Know your audience. That’s axiomatic with regard to any writing, and for persuasive legal writing it’s absolutely essential to be effective. Practically speaking, one’s own opinion of contractions in legal writing should be set aside in favor of the reader’s preference. I prefer plain English in legal writing personally; nonetheless, I will use tortured, stuffy, unnatural verbiage and opaque legalese if that is what impresses a judge whom I wish to persuade on behalf of a client.

  • Maryland, USA

    When I read “it is,” my BS detector lights up. It tells me the writer was less interested in sounding human than in minding his do’s and do-nots.

    In the 1980s, someone published what I still regard as the definitive defense of the Oxford comma. The defense was published in Technical Communication, the quarterly journal of the Society for Technical Communication. I wish I could find it now. It remains the most complete, vigorous, and unapologetic defense I’ve seen.

    With this column, Matthew Salzwedel has written the definitive defense of contractions in legal documents. I predict it will be cited for decades to come.