Legal Writing in Plain English as Culture War

legal_writing_plain_language_culture_war

Who’s afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.

But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.

While there is a growing number of disenchanted JDs out there who are quite happy to bash traditional lawyering culture at every turn, my posts on writing have generated a lot of critical comments. I’ve never thought of my views about writing (or those of other lawyers who think as I do) as being some sort of attack on lawyering in general. I just think that for a number of reasons, florid, complex writing strewn with legalese does a poor job of communicating, whether the reader is a lawyer, judge, or layperson (like a client).

And, while I haven’t spent days digging, I’ve only come across one lawyer who seems to have made a long-term effort to oppose the legal writing in plain English movement. Here’s Joe Kimble’s retort to that lawyer’s post.

The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary.

That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view.

My readers and I are smart, so there’s no need to “dumb down” my writing.

This comment was in reply to my post on how “shall” should not appear in legal writing:

["Shall" is] very useful . . . because halfway intelligent minds understand it is specifically meant in contrast to ["]may["].

I see “shall” used to mean all sorts of things in documents lawyers write. I guess we can consider all of those lawyers to not be halfway intelligent, but that wouldn’t really solve the problem. It doesn’t matter how smart you are if there are five meanings commonly attached to a word. It’s better to avoid that word if you can.

My clients are paying me to write impressive documents. That requires fancy language.

A comment on my post about the misuse of “such”:

I’ve heard this advice many times but I think it ignores the fact that clients often want to see legalese. I’ve had a client or two ask why documents didn’t contain more legalese. While such language may be superfluous, there is a lot to be said for providing a product that meets the client’s expectations both in terms of substance and form.

A client asking why there isn’t more legalese is not complaining, I suspect. He’s probably just surprised, and pleasantly so. Many, many more clients (whether well educated or not) are happier with documents they understand. A client who complains about not getting enough “whereins” and “heretofores” should be told the truth—those words don’t improve the document, they just make it a pain in the ass to read.

I refuse to surrender “good” writing to the witless masses and their spineless apologists! This is all just liberal politics at work!

A comment (responding to a comment) on my post about not writing to deflect absurd legal arguments:

. . . try explaining to a judge why you chose not to use a phrase that has a clear and precise meaning in the law? I’m sure the judge will care deeply about your political views on writing and will forgive the needless confusion.

I assume that the commenter was accusing the other commenter (our own Matt Salzwedel) of being some sort of bleeding heart liberal, trying to pull the majestic language of the law down into the gutter with the knuckle-draggers. Let’s just say that accusation about Matt’s politics is hilarious and leave it at that. Legal writing in plain English may be populist in that it seeks to increase understanding of the law, but populism comes in both liberal and conservative flavors.

Rules must be correct, otherwise they wouldn’t exist. So stop encouraging people to break them!

From a comment on my post about ignoring incorrect grammar “rules”:

The whole idea is that conjunctions link sentences and explain the relationship between the two sentences. Rather than having two separate sentences with the second sentence beginning with a conjunction, why not just use a conjunction as intended?

I find the “as intended” part fascinating. Intended by whom? The Grammar Gods? Washington and Lincoln? Your mom? I guess if you are someone who takes comfort in the idea that rules (rather than people choosing to follow rules) keep us from descending into anarchy (featuring zombies, no doubt), you probably cling, white-knuckled, to any rule, just, you know, because a person needs to sleep at night. I don’t know if that’s elitism, exactly. It’s a herd mentality, though.

You are wrong! I win! Neeners!

Another comment from the grammar “rules” post:

I disagree with your assessment that we should forget these grammar rules, unless you wish to write as if you are speaking. As you demonstrate, that is a mistake!

Some people still haven’t emotionally graduated from the second grade yet. Which explains why they still write according to the grammar instruction they received there.

You’re wrong! You just are! I know this!

Another comment on the “shall” post:

There is a time and a place for the word shall. “Shall”, “may”, “must” and “can” each have their own unique meaning. There is a range of implication. The word “shall” is a valid selection from this vocabulary.

According to my dictionaries, they don’t each have their own unique meaning.

Finally, a comment on my post about ditching “here and there” words:

There is nothing wrong with the “here and there” words; they are perfectly understandable. They obfuscate no more than adverbs in general obfuscate. Garner’s dislike of them and especially his annointed exception show that his rule is based simply on arbitrary taste.

This is when things start to get kind of unsettling. This comment flatly states that adverbs like “stupidly,” “foolishly,” and “unthinkingly” are no easier to grasp than “heretofore,” “thereon,” and “hereinafter.” That’s flabbergasting. It’s like when someone tells you his church is the “true church.” You may want to engage on this, but if you’re smart, you just walk away. Some people just won’t listen to reason. But it’s especially frustrating when those people are lawyers, and the subject is as secular and straightforward as how to write better.

(image: RUSSIA, OREL, MCENSK, 07 JULY 2012 from Shutterstock)

  • Kelly

    With regards to legalese and intricate legal writing, this disagreement exists simply because times are changing. Of those who oppose the simplistic approach to legal writing, I would be interested in what year they graduated law school.

    The English language itself has changed overtime. We don’t frequently say words such as groovy, bodacious, or swell anymore. Yet, these words were used frequently just a few decades ago. I personally, am partial to bodacious and think it should make a return. Words that are not used, become “endangered” (i.e. bloviate).

    Similarly, if we look to a court opinion written in the 1800s it will look very different than an opinion written today. The word usage between the two opinions will likely be very different. With that being said, we must be reminded that much of what a lawyer’s job consists of is trying to “please the court.” I’m not so sure it would be smart for me to write a motion to a court today worded as if it were written in the 1800s. Times change.

    I am currently a 3L and my law school teaches the simple english approach. We learn that legalese and all the fluff is on its way out. The way I see it is, those who side with making legal writing more simplistic are simply keeping up with the times. If you’re writing is easy to understand both sides as well as the judge, mediator, arbitrator, etc will know exactly what you’re saying and what you want. Those who fight to keep legal writing fancy and complicated are not necessarily wrong; it may be the way they were taught. However, imagine someone showing up to a party today and using the word groovy. Surely he would get some funny looks. This will be the same for those who continue on with fancy legal writing.

    • static

      I don’t think simplistic means what you think it means.

  • Elgin Barnes

    Defensive much? I used to really enjoy reading this blog until posts like this became more and more frequent. You have your personal views on legal writing, good. Many people disagree with you, fine. But you don’t have to write a long and drawn out post to let everyone know that you are right and they are wrong. We get it. Your feelings are hurt that people don’t share your views, move on! If you want people to keep reading this blog then take a different tone.

    Let me borrow a quote of yours from this post,

    “Some people still haven’t emotionally graduated from the second grade yet”

    Very true Mr. Mergendahl, very true. There are many second graders who pout when others disagree with them.

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

      You’re right. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.

      • Elgin Barnes

        There is nothing wrong with arguing about legal writing, and the blog posts about using plain English in lieu of legalese are valuable, but I think a line is crossed when the author takes an “I’m right and your are wrong” stance and has to pick out individual comments to show how “right” he is about his points. I don’t know about this particular blog, but most are funded by people who visit the website and see the ads. Unless you want people to quit visiting your website, I suggest this author not treat readers like idiots.

        Take this quote from Mr. Mergendahl for example,

        “I assume that the commenter was accusing the other commenter (our own Matt Salzwedel) of being some sort of bleeding heart liberal, trying to pull the majestic language of the law down into the gutter with the knuckle-draggers. Let’s just say that accusation about Matt’s politics is hilarious and leave it at that.”

        How on earth did you come to the conclusion that the commenter was calling Mr. Salzwedel a bleeding heart liberal?

        Remember the old tactic of writing a letter in the heat of the moment, but letting it sit for a few days before sending it so that you don’t send something you shouldn’t? This is a great example of that.

  • http://blog.bennettandbennett.com Mark W. Bennett (@MarkWBennett)

    I favor legal writing in plain English, but Mergendahl appears to be a poor spokesman for the movement. His post is larded with stilted turns of phrase and grammatical errors, not to mention a typo or two.

    The first commenter, on the other hand, couldn’t write his way out of a wet paper bag. (I know, I know: this is the Internet; we aren’t supposed to proofread each other’s work. But when you write anonymously about writing, your writing is your sole credential.)

    The more I read of lawyers’ writing (legal or otherwise), the more convinced I am that lawyers simply write badly. Legalistic writing provides an excuse for doing so. Perhaps Mergendahl should try it.

    • DonCeJota

      Mark, you must be a lawyer if you think they “write badly”?

      • http://blog.BennettAndBennett.com Mark W. Bennett

        You must not be a writer if you think they don’t.

  • John Hightower

    Keep hammering away, Andy. These responses are both flabbergasting and appalling.

  • http://www.editorsoftware.com Nick – Editor

    Most people think they are great writers. Lawyers certainly do. But they have the worst reputation of any professional group for writing long-winded, ponderous prose.

    I’ve taught writing skills to many different professions over the years. Lawyers are the group most set in their ways. Many lawyers have become so used to writing legalese they find it the norm. They even want others to write that way.

    As a non-lawyer who has to read legal documents, one little, common-sense change would help me and millions like me. Lawyers – could you please simply stop writing sentences over 40 words long. Keep your average sentence below 20. Just try it on the next few documents and you’ll see you draft better legal documents.

    That’s a first and simple step towards clarity in legal documents.

    Nick Wright
    Designer of the StyleWriter – plain English editing software

  • http://www.towerofivory.net/ Lukasz Gos

    The “whereins” and “heretofores” are actually more precise than any sort of cool, keep-it-real English. They do require more literacy from the reader, but they offer a lot in exchange. Democracy should mean more access to culture, not lower standards of culture. “Shalls” are a matter of style. Canon law does well without them. Personally, I love double shalls when setting out obligations; they help me drive the flow. You can, however, use the normative present or limit yourself to “will” or “going to”.

    Plain language is good, but the sort of plain language that its proponents produce is not really anywhere close to plain, and it loses out on precision. I’d use “ain’t” or “gotta” or a double negation in a legal document for the kicks, but I wouldn’t use that type of textbook semi-formal language which sounds like school writing. Perhaps when courts can be relied on to pursue non-formalistic, equitable interpretations, perhaps then.

    • http://www.towerofivory.net/ Lukasz Gos

      One more thing. The reputation of legalese is certainly soiled by bad use of it. The way I see it, people who can’t handle complex grammar shouldn’t use it. Otherwise they sound like a fiction writer who wants to impress the audience with Victorian-kinda dialogue (stress on “kinda”) but begins a windy tirade with an “I hath”, “thee hast” or something like that. Most legal drafters aren’t that bad, but there is certainly a lot to show. I see it all the time as a legal translator. The one rule that everybody should be taught is: don’t use grammar or syntax that you can’t control or words you don’t understand.

  • Chris Surmeier

    If it’s true the blogger’s dictionaries don’t list unique meanings for the words “shall,” “may,” “must,” and “can,” then I suggest the blogger needs to buy an English dictionary. Even the “Free Online Dictionary” includes usage notes identifying specific uses for each.

  • Cliff Tyllick

    Andy, lawyers whose clients insist that they use legalese might borrow this tip from people who build accessible websites: When the client insists that they make any part of that website inaccessible, they charge more.

    And they aren’t being arbitrary in doing so. Doing the wrong thing disrupts their standard operating procedure and harms–or at least muddies–their reputation.

  • Marc

    As a doctor, I find it flabbergasting that lawyers still insist on writing documents the educated – let alone the masses – can’t decipher. I wonder how those same legalese proponents would feel if the next time they need a medical or surgical procedure done, the practicioner explains and writes everything in medical jargon or – even better – old-school medical-speak. How would you like to have to bring your own physician to understand what you’re getting done because that’s what I need to do everytime I’m presented with a document a lawyer wrote. Indeed, hospital consents are required to be written in “layman’s terms”. Why can’t the legal profession be held to the same standards?

    Even a cover letter I was sent recently made no sense; you should see the contract… I thought the law was supposed to protect the masses. How the heck is that supposed to do that if 99% of the people can’t even read it let alone understand it? Is this self-protectionism? Medicine went through this a while back as did pharmacy… For example, the older apothecary system of writing prescriptions was eliminated in favor of an easier to read and write (and understand) “english” nomenclature. This also reduced errors in reading and medical errors. Maybe if people knew what they were signing there wouldn’t be so much frustration and anger towards the legal process.

  • http://www.translegal.com robert houser

    As I understand your reasoning (although I might have some difficulty being a lawyer), if you apply your logic to its fullest extent, everything that physicians, nuclear physicist and other professionals write should be easily understandable to the general public. Which, of course, is ridiculous. Why do people single out lawyers for legalese and fail to see that lawyers communicate using their own language just like other professions? The important point is to whom the lawyer is communicating. If the lawyer is speaking to a client of course legalese is inappropriate. However, the fact is that neither you nor I get to see or hear these communications because they are subject to attorney-client privilege. You get it??

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

      It looks to me like you have a pecuniary interest in keeping as much legalese in use as possible. (I hope I used that legal term correctly.)

  • http://www.translegal.com Matt Firth

    I’m a newbie to this blog – just a quick note to say how interesting I’ve found this discussion. Some of you may be interested to hear about a workshop aimed at teachers of Legal English taking place in Groningen, Netherlands on 28 September 2013. The subject is Teaching Plain English skills. Further details and the call for papers are available at the EULETA (European Legal English Teachers’ Association) discussion group: http://groups.yahoo.com/group/euleta/.

  • Jennifer Burman

    What all lawyers should remember is that legal writing needs to be clearly understood. A contract that cannot be understood cannot be enforced. A brief that cannot be understood can derail an otherwise good case. I don’t want to be the lawyer that has to explain to a client that the client is losing a meritorious case because the contract was badly drafted and the briefs were full of long, impressive Latin and Greek words but were unintelligible.

  • http://leytesamardaily.net/category/opinion/ormoc-upside-down/ Fidel Duna Banzon

    Here in the Philippines the Supreme Court has already manifested the use of plain English, instead of legalese. I am not a lawyer, but have several cases won by the lawyer I assist in research and preparation of pleadings. Although, to date, there are some lawyers here who tried to impress their clients and the judge who use legalese. That specialized language of the legal profession is usually wordy and complicated and often unintelligible to layman. The recent composition of the justices in the Philippine Supreme Court are rendering decisions in plain English which is understandable to layman. Hence, those lawyers who still use the specialized language of their legal profession in their pleadings are only for impressing their clients to justify their high fee.

  • Ed

    I’m a layman here in the Philippines, dealing with legal documents as part of work and doing business. Many lawyers here still resort to verbosity and redundancy, such as when they write “Be it resolved, as it is hereby resolved, that…” or “Before me today…. appeared the following persons known to me, and to me known, as…” I was able to finally confirm the uselessness of such when I asked two senior lawyers, and they both said that in the old days (the typewriter era), lawyers billed per page of documents delivered for a case, so they resorted to ways to extend what they wanted to say (aside from double-spacing and narrowing the left and right margin per page), hence their justification for legalese.