Legal Writing in Plain English as 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.

Andy Mergendahl
Andy Mergendahl is a privacy officer at a large commercial bank. He's also been a solo practitioner and a judicial law clerk. He considers himself a foot soldier in the War on Legalese (also known as the War Without End). Andy enjoys collecting names for bands that do not (yet) exist, being a runner (but not the act of running so much), and the bourbon Old Fashioned at Eat Street Social in Minneapolis. Follow him on Twitter @andymergendahl

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