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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. 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)

  2. "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.

  3. 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.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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