Supreme Court Justice Clarence Thomas isn’t a fan of big words in judicial opinions. The Atlantic recently quoted him as saying that he tries to write opinions so that non-lawyers can understand them:
[W]e write [opinions] so that they are accessible to regular people. That doesn’t mean that there’s no law in them. But there are simple ways to put important things in language that’s accessible. [T]he beauty, the genius is not to write a 5 cent idea in a ten dollar sentence. It’s to put a ten dollar idea in a 5 cent sentence.
Justice Thomas gives sensible advice in the abstract. But how, in practice, can lawyers use simple words to convey complex ideas? And is simplified legal writing more effective in persuading judges and satisfying clients?
To answer these questions, let’s first put the justice’s advice in historical context.
Attic and Asiatic styles
As I explained in a previous column, writing tends to fall within two literary styles, both of which were born from ancient Greek and Roman rhetoric.
As Bryan Garner explains in The Elements of Legal Style, the Attic style is “refined conversation: concise, restrained, shorn of intricacy.” In contrast, the Asiatic style is “a florid oratorical style [that] sports elaborate antitheses, complicated syntax, and correspondences in sense and sound.”
Since Cicero debated the merits of each style in his Orator (46 B.C.), there’s been conflict between proponents of each style. In the 20th Century, for example, this conflict took the form of barbs exchanged by Nobel Prize winners William Faulkner and Ernest Hemingway.
During one exchange Faulkner accused Hemingway of “never [using] a word that might send a reader to the dictionary.” Hemingway retorted, “Does [Faulkner] really think big emotions come from big words? He thinks I don’t know the ten-dollar words. I know them all right. But there are older and simpler and better words, and those are the ones I use.”
Although each style boasts an impressive pedigree, since at least the mid-19th Century most writing authorities have told writers to adopt the simpler Attic style. Sir Ernest Gowers, in The Complete Plain Words (1954), boiled down this advice to six words: “Be short, be simple, be human.”
But this general writing advice never fully penetrated legal writing, which clung to its Asiatic roots. For the most part, we can blame the law schools. Since the casebook method of legal instruction was invented in the early 19th Century, lawyers have learned a “bastardized Asiatic style” (Garner’s term) by adopting the style of antiquated opinions found in law-school casebooks, which buried legal concepts in sprawling, dense prose, and legal jargon.
In the last 50 years, the plain-English movement — which emphasizes simplicity, clarity, and concision — marginalized the remaining defenders of the Asiatic legal-writing style. Yet paying lip service to plain-English principles isn’t enough.
So, again, how can lawyers ditch the Asiatic style and learn how to write simply in practice? It’s not as hard as it might seem.
Use short, familiar, Anglo–Saxon words
Lawyers who write simply use short, familiar Anglo–Saxon words. In The King’s English (1906), H.W. Fowler summarized this idea in five related principles: “Prefer the familiar word to the far-fetched. Prefer the concrete word to the abstract. Prefer the single word to the circumlocution [roundabout expression]. Prefer the short word to the long. Prefer the Saxon word to the Romance.”
Practicing Fowler’s five principles means, at the very least, replacing Latinisms — i.e., words, idioms, or phrases borrowed from Latin — with simpler English substitutes. True, Latinisms have filled voids in the English language. Examples of void-fillers are alibi, amicus curiae, de minimis, ex parte, habeas corpus, prima facie, res ipsa loquitur, stare decisis, and voir dire.
But other Latinisms are quite avoidable: ab initio (from the start), arguendo (for the sake of argument), inter alia (among other things), gravamen (crux, gist), res gestae (things done), sua sponte (on its own), sui generis (unique), and vel non (or not, or the lack of (it, them)).
Select the simpler of two words
Besides replacing Latinisms, lawyers who write simply always choose the simpler word or phrase. In The Redbook: A Manual on Legal Style, Garner lists more than 150 complex–simple choices. Here are a few:
- acquire/procure (get), adjacent/contiguous to (next to), ameliorate (improve), ascertain (find out, make sure), authored (wrote)
- cognizant (aware), commence (begin, start), conjecture/surmise (guess), demonstrate (show), discontinue (stop),
- elucidate (explain), endeavor (try), erroneous (wrong, incorrect, mistaken), evidencing (showing)
- facilitate (help, ease), forward vb. (send), frequently (often)
- implement (carry out, set up), incongruous (unfitting, incoherent), individual(s) (person, people), inform (tell), inimical (adverse, hostile), intimate vb. (hint)
- multitudinous/numerous (many), notwithstanding (despite)
- render (make, leave), request (ask), reside (live), subsequent (later), transmit (send), and utilize (use).
Close editing catches these complex–simple choices. When editing, lawyers should ask themselves whether a non-lawyer would be bewildered by a word choice. For example, no lawyer would say to a non-lawyer friend that
I’m going to the grocery store adjacent to my office to ascertain whether it sells fresh salmon. If it does, I will procure some filets for dinner, which I’ll commence preparing at 7:00 p.m.
No, most lawyers would say in simple, idiomatic English that
I’m going to grocery store next to my office to see whether it sells fresh salmon. If it does, I’ll buy some filets for dinner, which I’ll start preparing at 7:00 p.m.
The benefits of simple writing are many
Lawyers, of course, shouldn’t be afraid to use uncommon words if they fit the context of the sentence. Aristotle no doubt was right when he said that writers should strive for a mixed diction.
But short, familiar, Anglo–Saxon words produce a more persuasive legal-writing style. Why? They reduce word counts. They quicken prose, and directly connect ideas. They don’t make judges and clients feel stupid by forcing them to dictionaries. And, most importantly, they give readers a chance to comprehend unfamiliar, complex subject matter.
So try to follow Justice Thomas’s advice about using five-cent words to convey ten-dollar ideas, and leave the complicated Asiatic style to the next Faulkner. You won’t win a literary award by keeping it simple, but your legal writing will undoubtedly be more effective.
This column is adapted from an article originally published in the Minnesota Lawyer on April 1, 2013.