Legal Writing Wars: Seeking Precision
This week, our review of Peter M. Tiersma’s book Legal Language confronts a crucial question: can a lawyer write with precision without writing in a fashion that’s very difficult to read?
Pronouns? Too confusing!
A typical reader or writer without a legal education might never consider the possibility that the use of pronouns is inherently imprecise. Tiersma presents this sentence:
John kissed John’s girlfriend.
If it is intended to mean that John kissed his own girlfriend, that sentence just looks strange. A typical writer would write:
John kissed his girlfriend.
Tiersma, on this writing method:
Roughly speaking, when we refer to a person or thing more than once in the same discourse, we use the name or a full noun only the first time, to identify the referent. The next time we wish to refer to that same person or thing, we typically use an appropriate pronoun.
But when using pronouns, the antecedent (the noun that the pronoun refers back to) can be uncertain. In John kissed his girlfriend (with nothing to provide more context) it’s clear John is kissing his own girlfriend.
But consider this sentence:
John told James to kiss his girlfriend.
Without more information, we don’t have a clue as to whether John or James is the antecedent for his. What’s John up to here?
So because pronouns can be ambiguous, lawyers tend to avoid them by repeating nouns over and over, sometimes when it’s not necessary to do so. Imagine a contract between, say, Actor and Studio. Is it really necessary to refer to Actor as Actor over and over, if there were no chance of confusing Actor (if referred to as he or him) with Studio (if referred to as it)? No. But he and him are gender-specific pronouns, so a boilerplate that used Actor could be used for either gender. Personally, I would choose to use find-replace to solve that problem (in just a few seconds) in order to avoid the very clunky repetition of Actor and Studio.
At times, legal writing has sown confusion and reinforced outdated gender roles in an attempt to reduce the total number of words required. One examples is statutes that declare that the masculine gender shall include the female. This allows the use of, e.g., he to include she and it, which can streamline the writing.
But this causes problems. While the masculine can include the feminine, the opposite is not true. For example, a pension plan providing a benefit to widows has been held to not apply to widowers.
Women have argued that using the masculine to refer to everyone promotes sexism. While I think this is happening less since Tiersma’s book was published in 1999, the point is still a valid one. One court held that jury instructions that only used the male pronoun may have confused the jury in the homicide prosecution of a woman, as the objective standard presented to the jury described an altercation between two men. Ouch.
Tiersma asserts that despite so many lawyers’ claims about their legal writing’s precision, some of its attributes are deliberately imprecise. Passives are used to obscure the identity of an actor or minimize the act’s importance—this is purposeful lack of precision.
Typical non-legal sentences consist of a noun, then a verb: The boy kissed the girl. We know the boy is the subject of the sentence and the actor, because it precedes the active verb. We know the girl is the object—the one who was kissed—because this noun follows the verb. If we simply reverse the nouns, we reverse the meaning: The girl kissed the boy.
Because we are accustomed to such structure, we tend to anticipate that whenever a noun leads a sentence, it will be the subject and the actor. A sentence must have a subject, and the subject is ordinarily the actor. The action is stated simply using a simple verb.
But since lawyers are often in the business of obscuring, downplaying, or minimizing a client’s bad act, the goal is the opposite of precision. This is where passives (the use of the passive voice) come in. There are 3 easy steps in creating a passive:
1. Move the object (the girl) to the beginning of the sentence;
2. Move the original subject to the end, behind a prepositional phrase beginning with by;
3. Change the active verb kissed into the passive form was kissed.
Voila: The girl was kissed by the boy. The subject (the girl) is not the actor. To minimize or obfuscate more, the actor can be left out altogether: The girl was kissed.
While to a lawyer’s eyes, this may seem a weak attempt to obscure the facts. But to a jury, it might make some difference (but of course it would be delivered verbally.) It’s possible that re-arranging sentences into passive voice allow the reader or listener to minimize the action. Consider this classic political passive:
Mistakes were made.
So in our boy-girl example, the boy’s lawyer might be striving to be interpreted as suggesting, hey, let’s not point fingers, folks. Sure, the girl was kissed by the boy, but maybe she wanted him to at the time but when she learned her father was watching, well, you know . . .
I do recall a friend who clerked in the appellate court telling me how unimpressed and in fact irritated the judges were by these kind of amateurish attempts at nimble wordsmithing. He added that the most-detested sentence of all, though, was in active voice:
The gun discharged.
Lawyers do well when they consider the fact that the judges they write for are likely as savvy (or more savvy) than a typical lawyer when it comes to seeing through these smokescreens.
Next week: nominalizations, vagueness, and flexible language.
(image: precision measurement tool from Shutterstock)