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.
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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. Keep Reading ⇒
Writing well is difficult. It requires a lot of time and patience. And it’s made more difficult when one has to ignore one’s earliest teaching on the subject.
I fondly recall my elementary school teachers. Well, most of them. And it’s true that a lot of rules they taught me (say please and thank you, wait your turn, use a tissue, not your sleeve) have served me well throughout life.
But our teachers, with the best of intentions, often teach us writing rules that are simply incorrect when we grow up and strive to write better than a third-grader.
Here are three rules you may have learned back in grade school that you should forget.
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Once upon a time, lawyers, bred on a steady diet of the old, dense, and turgid legal opinions that law students today still must trudge through as some sort of right of passage, relied purely on logic to advocate for their clients. But, ever since legal writing expert Bryan Garner began urging lawyers to write in clear, direct prose — and, in doing so, to essentially discard much of what they learned in law school about legal writing — there has been a growing movement toward the use of the narrative style in legal writing.
Many who have adopted the narrative style in their writing — Garner being the notable exception — often say to younger lawyers or law students to “tell the client’s story,” or “let the facts show why your client should prevail.” These are not suggestions, but goals for how the final product should read. Lawyers are left to figure out how to reach that goal on their own.
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Be honest: have you ever deemed anything? Me either.
The quickest way to improve your legal writing is to eliminate legalese, jargon, and bloat. I wrote about the need to eliminate shall from your writing, and created a bit of a kerfuffle by doing so—some lawyers seem to have an almost romantic attachment to it.
I also urged you to stop using such to mean this, that, these, those, or the.
Now, let’s deal with deem. Let’s deal with it by putting it out of our misery.
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Hugh Hefner is an ageless source of broad interest — and not just because he stuffed his magazine and his life full of naked women. His success has nothing to do with naked women. Well, it has a lot to do with naked women, but not quite as much as you might think.
There’s a reason Hefner is a cultural icon and a regular subject of features in magazines like Esquire, which just published an article by Chris Jones about Hefner’s “perfect life.” (Apart from the fact that he’s an 86-year-old man who recently married a woman in her twenties.)
From Jones’s article, here are three lessons for lawyers, from newbies to veterans, inspired by the secret of Hefner’s perfect life.
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Our legal-writing mavens, Andy Mergendahl and Matt Salzwedel, will be presenting a 2-hour webinar on legal writing at 9:30 a.m. (Central) on April 12th. They will cover the basics of brief writing and contract drafting, and give tips on appellate and district court practice.
You can watch online, although you won’t get to see their pretty faces; just their slideshow.
The registration fee is $45 (discounts for law students and public interest lawyers), which supports legal aid in Minnesota.
Good presenters, good cause, nothing to lose (well, except $45, but I think we’ve covered that).
Sign up here.
(image: http://www.flickr.com/photos/mobilestreetlife/3668669816/)
Writing to British civil servants in the 1940s, Sir Ernest Gowers explained in The Complete Plain Words that effective writing is efficient writing:
To be clear is to be efficient; to be obscure is to be inefficient. Your style . . . is to be judged not by literary conventions or grammatical niceties but by whether it carries out efficiently the job you are paid to do.
Lawyers could learn a lot from Sir Ernest. Judging by their sprawling briefs and ponderous, verbose contracts, many lawyers care little about word economy. How can lawyers write more efficiently? They can start by targeting two main enemies of efficient legal writing: buried verbs (aka nominalizations) and unnecessary prepositions. Keep Reading ⇒
Poor communication should be corrected. But does that mean all kinds of communication? And how do we correct, uh, correctly?
Matt, Chris, and I spend a fair amount of time writing about writing here. And we encourage all lawyers who care about good writing to take that passion not just down the ladder to subordinates, but up it to superiors as well, rather than just going along to get along.
But what about correcting how people speak? If someone in your office says, “Tom and Kate and me are going to lunch,” should you correct that person? This is a very tricky question. My advice is to just let that “me” slide right on by.
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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.
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