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Plain English to arrive in legal briefs near you

Holly Wheeler
November 20, 2013
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Ask lawyers or law professors to describe legal writing, and some of the adjectives used include: stuffy, convoluted, long-winded, confusing, expletive and pompous. Comparisons to the court case in Charles Dickens’ “Bleak House” and William Faulkner’s book “The Sound and the Fury” are also made.

Legalese has become a language unto itself, and some attorneys think it should stay that way. Others, however, are embracing writing for the sake of truly communicating as opposed to writing for the sake of using words. Today, law schools seek to steer students down the path of plain English, teaching them writing that is concise, clear and tailored to their audience. Doing so, they argue, prevents unnecessary confusion that ultimately can save both time and money.

Adams Adams

“Several years ago, the British government was very frustrated because its tax code was filled with legalese, and they decided to go toward plain English,” said Cynthia Adams, clinical professor of law at Indiana University Robert H. McKinney School of Law. “The British tax office rewrote the code in 1996, and in 2009 there was an estimated cost saving of $7 million pounds per year due to plain English.”

What are you saying? Exactly.

The Internet is filled with blogs and debates pertaining to the eradication of legalese. Those opposed fear that using simpler terms will “dumb-down” legal writing, breaking down a time-tested barrier between the legal world and the rest of society. Others fear that using terms drawn from modern written and spoken English won’t communicate the same meaning as those that are tried and true. Still others feel there’s an expectation to use legalese.

“They feel that they’re being employed to offer professional advice, but by using words that sound ‘legal’ they don’t impart any legal meaning. It’s a smoke-screen, a red herring,” Adams said. “They feel that what they’re getting paid to do is sound professional, when that’s not what they’re getting paid to do. They should be paid to impart knowledge of legal issues to their client or whoever their ultimate audience is. It’s unfortunate, but it continues.”

Choosing the proper words to explain what you mean clearly can be tricky. Legal writing instructors take students to task so they can learn alternatives to words like “theretofore” and “hereby” which, although used historically, often can be sources of confusion. “Shall” is sometimes singled out, and its use is debated among plain English proponents.

There are words out there that do have specific legal meanings and there’s no way of getting around them. The lawyer’s skill must be to use these terms properly, framing it within a clear and concise sentence.

“What I call legalese are those legal terms that you have to have,” said Susan Stuart, professor of law at Valparaiso University Law School. “You have to call something ‘negligence.’ You have to call something ‘bailment.’ You have to call something ‘civil right.’ These are required legal terms that all legal readers would understand.”

Taking the (legal)-easy way out

After centuries of practice, there is a mountain of caselaw written in legalese. As lawyers read more of this caselaw and copy the format of briefs and other documents, the style in which they’re written can indoctrinate bad habits. Those habits, although born of traditional legal writing, are becoming more frowned upon.

Goodman Goodman

“The judges I’ve spoken to, they say (clear writing is) very important to them,” said Sophia Goodman, professor of law at Indiana University Maurer School of Law. “Judges have to read so much – and nothing that you write as a lawyer is anything anybody approaches with pleasure and anticipation. We write because we have to. This is not beach reading. Your lawyers are busy and impatient. So anything you can do to make your writing more concise and clear is going to be helpful and appreciated. And every once in a while on my Listserv there will be something posted by a judge who has gone through a lawyer’s brief, circled everything and said, ‘These two pages could have been written in one short paragraph.’”

Legal writing instructors recommend students produce well-organized, audience-appropriate, persuasive writing using active voice. Understanding the nuances of these principles will cultivate writing that appeals to clients, judges and other lawyers.

“You always start out in any legal analysis with the answer,” Stuart said. “If done correctly, someone fairly educated should be able to read it and understand it. The first part of that analysis explains the law, then the writer shows how that law solves that particular client’s problem. Everything I’ve explained about the law has to fit with how to fix the client’s problem. There is a distinct division between giving someone the background of what the law is and actually solving the problem.”

Being concise might be the most difficult part of legal writing, but it’s likely the most important concept of all. Gone are the days of using words for the sake of using words. Creating succinct writing is the gold standard.

“I usually give them very strict word limits on their assignments,” Allison Martin, clinical professor of law at IU McKinney, said of how she trains her students to write concisely. “They have a tendency to keep writing to fill the pages. They are going to get a word limit when they have briefs. They’ll want to explain what happened in a particular case; you don’t need to explain every procedural thing that happened, unless the procedure is the issue.” Martin said she works to make students realize that they need to analyze what details are necessary and of interest to readers and then provide those details in digestible sentences.

Heretofore, write for tomorrow

Writing is always evolving because language is always evolving. Writing is integral to the practice of law, and firms now recognize the importance of training lawyers to perfect this skill.

“We have writing programming for the attorneys, and we also have writing coaches who are used on an as-needed basis,” said Rachel Dawson, director of professional development at Faegre Baker Daniels LLP. “The majority of our writing coaches are senior associates or most likely partners. Typically it’s a partner from the same practice group so they have the opportunity to work together.”

Jones Jones

Given today’s technology, legal writing, even on a local matter, can make an impression worldwide. Lawyers can research cases online, send clients and court officials emails and discuss legal issues through articles that can be disseminated the world over. Publications are linked to firm websites and blogs invite feedback from any and all. According to Brian Jones of Bose McKinney & Evans LLP, who writes the firm’s insurance blog, legal writing should stand the test of time.

“It’s like what they say about the Internet, ‘Once it’s on the Internet, it’s there forever,’” he said. “There’s a chance that’s true, especially in federal courts where files are electronically filed. If they’re on the cloud and someone was to look at them years later, you’d want them to be able to understand what you were trying to say, the words you were using. It ought to be as clear then as it was when it was written.”•

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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