Legalese is awful. To prove it, Sam Glover, Lisa Needham, and I combined forces to write the worst piece of legal writing we could. Here’s what we came up with:
Clarity in Legal Writing: Unattainable Goal or Necessary Component of Effective Advocacy?
The issue of clearness and conciseness in writing and preparing legal documents, e.g. court filings, pleadings, and motions and all other possible legal and ancillary documents is often a topic of discussion among judges and legal scholars. Many, if not most, judges and legal scholars would be in agreement that ease of reading, as well as clarity of sentence structure, and grammar, are some of the primary factors in gauging the effectiveness of legal argument. This “Note” will therefore assert that the authors’ position is that creating legal documents in which these factors are exhibited is of paramount importance in legal writing and, in most situations, is a necessary component of effective advocacy.
Many attorneys at law will assert that achieving clarity in legal writing is a Sisyphean endeavor. (See previous paragraph for further information.) The reasons for the lack of clarity and conciseness, etc., in legal writing, are three-fold. Firstly, legal writing involves often-complex subject matter, which takes many diverse and varied sources of information, i.e. statutes, ordinances, court rulings, and rules of procedure, and offers analysis and application of said statutes, ordinances, court rulings, and rules of procedure to a discrete legal or factual issue. Secondly, many attorneys believe, wrongly in many, if not most, cases, that a complexity of verbiage and syntax adds a potential element of gravitas to their pronouncements. Thirdly, and finally, many attorneys thus promote the use of many antiquated phrases, historical metaphors, and latin terms as “short-hand” methods of explaining legal concepts, however, ipso facto, these attorneys may obfuscate the terms about which they seek clarity, et sic porro.
The use of clear and concise verbiage, grammar, syntax, and phrasing as a necessary and critical component of effective advocacy should be the primary and foremost goal of any attorney. Many technological solutions, such as applications, “on-line” tools, websites, and the Internet, exist that provide for ease of writing and formatting. As mentioned supra, many appellate court judges have expressed a strong preference for clear and precise language in appellate briefs. Attainable as it might be, however, many attorneys continue to eschew these goals in favor of complex “legalese,” to borrow an apt, though not entirely accurate, phrase from the popular vernacular. However well-meaning, intelligent, or professional the use of complex language may appear to the legal writer, it may actually hinder the effectiveness of an otherwise well-formed and powerful legal argument.