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IndyBar: ‘The Best Style “Handbook”’ For Lawyers and Judges (Part I)

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By Douglas E. Abrams

Like other Americans, lawyers and judges most remember British novelist and essayist George Orwell (1903-1950) for his two signature books, Animal Farm and 1984. Somewhat less known is his abiding passion about the craft of writing. It was a lifelong passion,1 fueled (as Christopher Hitchins recently described) by Orwell’s “near visceral feeling for the English language.”2
 

abrams-doug.jpg Abrams

Orwell’s most exhaustive commentary about writing was his 1946 essay, Politics and the English Language,3 which minced no words. “[T]he English language is in a bad way,”4 he warned. “Debased”5 contemporary prose was marked by “abuse,”6 “slovenliness,”7 and a “lifeless, imitative style”8 that was nearly devoid of “a fresh, vivid, homemade turn of speech.”9 A “tendency … away from concreteness”10 had left writing “dreary, … ugly and inaccurate.”11 “[V]agueness and sheer incompetence,” he said, “is the most marked characteristic of modern English prose.”12

Orwell’s 12-page essay catalogued specific maladies that characterized the “decay of language” and offered six curative rules.13 The catalog and rules still reverberate among professional writers. Judge Richard A. Posner calls the essay “[t]he best style ‘handbook’.”14 Nobel Prize-winning economist Paul Krugman recently went a step further, calling the essay a resource that “anyone who cares at all about either politics or writing should know by heart.”15

If I were a law partner employing young lawyers or a judge employing law clerks, I would add Orwell’s essay to a list of reading recommended on the way in. If I were a young lawyer not required to read the essay, I would read it anyway. The entire essay is available for downloading at http://orwell.ru/library/essays/politics/english/e_polit.

Orwell stressed that he was dissecting, not “the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought.”16 The narrower scope does not deprive legal writers because Justice Felix Frankfurter was right that “[l]iterature is not the goal of lawyers, though they occasionally attain it.”17 Orwell’s essay approached language as a tool for clear communication, the goal that defines what lawyers and judges do. “The power of clear statement,” said Daniel Webster, “is the great power at the bar.”18

As its title intimates, the essay included criticism of political writing done by government officials and private observers. The essay’s staying power, however, transcends the political arena. By calling on writers of all persuasions to “simplify your English,”19 Orwell helped trigger the plain English movement, which still exerts influence in legislative halls, courts, administrative agencies, and law school legal writing classes.

This is a two-part article. Here I describe how judges, when they challenge colleagues or advocates in particular cases, sometimes quote from Orwell’s essay as a touchstone for clear expression and careful reasoning. Part II will present Orwell’s description of maladies that plagued contemporary prose. Part II will close with discussion of Orwell’s six curative rules and their continuing relevance for today’s lawyers and judges.

‘Take the Necessary Trouble’

“[W]ritten English,” said Orwell in his essay, “is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.”20 In 2012, the United States Court of Appeals for the District of Columbia Circuit quoted this passage in National Association of Regulatory Utility Commissioners v. United States Department of Energy.21

The D.C. Circuit held that the challenged agency determination violated the Nuclear Waste Policy Act of 1982. Without conducting a valid cost evaluation required by the Act, the agency had refused to adjust or suspend annual fees collected from owners and operators of nuclear power plants to cover costs of the government’s long term disposal of civilian nuclear waste.

The parties hotly contested the case with hefty servings of alphabet soup. On page 48 of its 58-page brief, for example, the National Association argued that, “Although DOE has not disclaimed its obligation to dispose of SNF, it is undisputed that DOE currently has no active waste disposal program.… The BRC is undertaking none of the waste disposal program activities identified in NWPA § 302(d). Its existence therefore cannot justify continued NWF fee collection.”22

On page 24 of its 60-page brief, the agency countered that “[t]he plain language of the NWPA… provides the Secretary [of Energy] with broad discretion in determining whether to recommend a change to the statutory NWF fee. … In section 302(a)(2) of the NWPA, Congress set the amount of the NWF fee — which is paid only by utilities that enter into contracts with DOE for the disposal of their SNF and HLW. …”23

Writing for the unanimous panel in National Association of Regulatory Utility Commissioners, Judge Laurence H. Silberman quoted Orwell and admonished the parties for “abandon[ing] any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with” acronyms.24

Other decisions have also quoted Orwell’s call to “take the necessary trouble” to achieve maximum clarity.25 In Sure Fill & Seal, Inc. v. GFF, Inc.,26 for example, the federal district court awarded attorneys’ fees to the defendant on its motion to enforce the parties’ settlement agreement. The court criticized both parties’ submissions. “Imprecision and lack of attention to detail,” wrote Judge Elizabeth A. Kovachevich, “severely dampen the efficacy of Plaintiff’s written submission to this Court. Equally unhelpful is Defendant’s one sentence, conclusory response that is completely devoid of any substance. Advocates, to be effective, must take the ‘necessary trouble’ to present the Court with coherent, well-reasoned and articulable points for consideration.”27

“At times,” Judge Kovachevich specified, “the Court was forced to divine some meaning from the incomprehensible prose that plagued Plaintiffs’ written objections. Lest there be any confusion, the Court graciously did so even though it could have simply refused to give the faulty objections any consideration at all. The Court would have been equally obliged to treat Defendant’s failure to provide meaningful response as a concession of Plaintiffs’ objections.”28

‘Like Soft Snow’

George Orwell held keen interest in politics, and his 1946 essay attributed “the decadence of our language” partly to political motivation.29 “[P]olitical language,” he wrote, “has to consist largely of euphemism, question-begging and sheer cloudy vagueness.… [W]ords fall[] upon the facts like soft snow, blurring the outlines and covering up all the details.”30

This passage appeared in Stupak-Thrall v. United States,31 an en banc decision of the U.S. Court of Appeals for the Sixth Circuit that carried no political overtones. The full court remained evenly divided on the question of whether the plaintiffs’ riparian rights may count as “valid existing rights” to which U.S. Forest Service regulations are subject under the federal Michigan Wilderness Act (MWA). Dissenting judge Danny J. Boggs criticized his colleagues who favored affirmance of the decision below. “The interpretation of the ‘valid existing rights’ language in Section 5 of the MWA to mean that [plaintiff] has no rights that the Forest Service is bound to respect is a good example of the distortion of language decried by” Orwell in his essay.32

Part Two Upcoming: Orwell’s Six Rules

In the next issue, Part II will present Orwell’s catalog of the maladies that plagued contemporary prose, together his six curative rules. To provide a flavor for what will come, here are the rules:

“1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than say anything outright barbarous.”33

More about each of the six next time.

Douglas E. Abrams, a University of Missouri law professor, has written or co-authored five books. Four U.S. Supreme Court decisions have cited his law review articles. This article first appeared in The Precedent, a publication of The Missouri Bar.

ENDNOTES

1 George Orwell, Why I Write (1946) (“From a very early age, perhaps the age of five or six, I knew that when I grew up I should be a writer.”).

2 Christopher Hitchins, The Importance of Being Orwell, Vanity Fair, Aug. 2012, at 66, 66.

3 George Orwell, Politics and the English Language, in Essays on Language and Usage (Leonard F. Dean & Kenneth G. Wilson eds., 2d ed. 1963).

4 Id. at 325.

5 Id. at 333.

6 Id. at 325.

7 Id.

8 Id. at 332.

9 Id.

10 Id. at 330.

11 Id. at 325, 334.

12 Id. at 327.

13 Id. at 336.

14 Richard A. Posner, Judges’ Writing Styles (and Do They Matter?), 62 U. Chi. L. Rev. 1421, 1423 n.8 (1995).

15 Paul Krugman, Orwell, China, and Me, N.Y. Times Blogs (July 20, 2013).

16 Orwell, supra note 3, at 335.

17 Felix Frankfurter, When Judge Cardozo Writes, The New Republic, Apr. 8, 1931.

18 Letter from Daniel Webster to R.M. Blatchford (1849), in Peter Harvey, Reminiscences and Anecdotes of Daniel Webster 118 (1877).

19 Orwell, supra note 3, at 336.

20 Id. at 325.

21 680 F.3d 819 (D.C. Cir. 2012); see Douglas E. Abrams, Acronyms, 6 Precedent 44 (Fall 2012).

22 Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief of Consolidated Petitioners 48, 2011 WL 5479247 (2012).

23 Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief for Respondent 24-25, 2011 WL 5479246 (2012).

24 Nat’l Ass’n, 680 F.3d at 820 n.1.

25 See, e.g., Delgadillo v. Astrue, 601 F. Supp.2d 1241 (D. Colo. 2007) (discussing confusion caused by confusing “attorney fees” and “attorney’s fees” under the Equal Access to Justice Act); Anthony A Gagliano & Co. v. Openfirst, LLC, 828 N.W. 2d 268, 271 n.2 (Wis. Ct. App. 2013) (“acronyms and initials make comprehension more, not less, difficult”).

26 2012 WL 5199670, No. 8:08-CV-882-T-17-TGW (M.D. Fla. Oct. 22, 2012).

27 Id. * 3.

28 Id.

29 Orwell, supra note 3, at 334.

30 Id. at 333.

31 89 F.3d 1269 (6th Cir. 1996) (en banc).

32 Id. at 1292 (Boggs, J., dissenting); see also, e.g., Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc) (Boggs, J., dissenting), aff’d, 539 U.S. 306 (2003) (“[W]hatever else Michigan’s policy may be, it is not ‘affirmative action,’” quoting Orwell’s “soft snow” metaphor); Palm Beach County Sheriff v. State, 854 So.2d 278 (Fla. Dist. Ct. App. 2003) (quoting Orwell’s “soft snow” metaphor and holding that in applying sovereign immunity, there is no distinction between the “reimbursement” and “recovery” to which the plaintiff sheriff said his office was clearly entitled, and the right to “damages” which sovereign immunity precedent rejected); cf. Quartman v. Martin, 2001 WL 929949, No. 18702 (Ohio Ct. App. Aug 17, 2001) (in discussion of probable cause, quoting Orwell essay that “[p]olitical language . . . is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind”).

33 Orwell, supra note 3, at 335.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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