We Tried to Create the Worst Legal Writing Possible

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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.

Image credit: Word Cloud by Jason Davies

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  • Bryan Short

    Not even close to the worst written legalese I’ve ever seen. You guys are way too good at clarity. Your penchant for clarity has skewed your perception of what really bad writing is. In my aforementioned comments (albeit, parenthetically referenced herein as “Comments” or “Comment”, or comment, or coment, or comet), be it therefore fully, completely, and unequivocally expressed, without any possibility of ancillary or alternative interpretations, all other interpretations being herein completely, irrevocably, and perpetually waived, that clarity (as defined herein meaning the brevity, accuracy, and clarity of written English), shall be and forever herein throughout, ordered, decreed, adjudged and mandated for all further written communications, vis-a-vis, this writing.

    Now that’s a load of crap (which I encounter fairly regularly).

    • NY_Jim

      I wish Bryan could have worked in a half-dozen and/or’s and a spattering of “notwithstandings anything herein to the contrary”. [Is that the correct plural?]

  • I agree with Bryan, this is far from the worst possible legalese. But here’s an idea: make it a contest. I’m sure readers would do you proud.

    • Sam Harden

      There is a comment section… so people could put their monstrosities in as comments.

  • It’s an interesting example.
    I can note here: ” Many technological solutions, such as
    applications, “on-line” tools, websites, and the Internet, exist that
    provide for ease of writing and formatting.” the different structures of the text and differente levels of ideas written all togheter in the same sentence, simply separated by a comma. It seems all equal, but it’s not.

    Thanks.

    Ave atque vale :)

  • bradpearce

    I’m sorry, but you lost me in the first line of the second paragraph. Everyone knows it should be “the achievement of,” not “achieving.”

  • Chuck Pollack

    The best example may be in an Eleventh Circuit Court of Appeals case, No. 13-14996, an unpublished opinion in Coyote Portable Storage v. PODS Enterprises. The Court of Appeals, in reviewing definitions contained in a Franchise Agreement, said, “They could be exhibit A in a law-school class on bad drafting. The first
    definition is a 139-word sentence fragment. The second is a 58-word
    “which” clause in the agreement’s next sentence.”
    I think that takes the cake.

  • All notaries know what “ss” means but can’t complain about it as they are precluded from giving legal advice.

  • Old Dog

    It is patently obvious that the purpose, or the primary purpose, if not the sole objective, of this effort to demonstrate, illuminate, elucidate and exemplify the various tortured constructions of the English language to which lawyers unwittingly aspire, would most likely be to promote the general, if not precisely systematic, amelioration of habitual obfuscation among legal writers. While I personally, as I am certain that many of our colleagues do professionally, applaud these efforts, your apparent omission of an obligatory comma after the word “documents” at the beginning of the third line leads one to question your rigorous attention to detail, although not to doubt the undoubted sincerity of your enterprise.

    • Old Dog

      Having myself omitted an obligatory comma after the phrase “third line” in the penultimate line of the above comment, I am now forced to question my own rigorous attention to detail. Please ignore the foregoing comment.