ILNews

What are lawyers' pet peeves when it comes to legal writing?

Jenny Montgomery
July 6, 2011
Back to TopCommentsE-mailPrintBookmark and Share

In April, a Missouri attorney filed an eight-page motion seeking clarification of the opposing counsel’s pleading. Attorney Richard D. Crites criticized his opponent’s grammar, use of apostrophes, and lack of detail, writing in his motion that the pleading “is the worst example of pleading that Defendant’s attorney has ever witnessed or read.”

Legal bloggers quickly picked up the story, with lawyers around the country chiming in about what distinguishes good legal writing from bad.

Stodgy wording

Anne Cowgur, a litigation partner for Bingham McHale in Indianapolis, talked about some of the language she could live without.
 

cowgur-anne-mug.jpg Cowgur

“‘Enclosed please find …’ – my reaction to that is: Are we begging them to find it?” Cowgur said. “Why can’t we just say ‘Enclosed is’” and continue with the thought.

Cowgur has an undergraduate degree in broadcast journalism from the University of Illinois. Her mother was an English teacher, so she said her disdain for poor writing may be hereditary.

“I have a big problem with when you use a lot more words to say something than what you really need,” she said.

Cowgur said she objects to: “Anything that’s like, ‘Lookie here! I’m about to say something!’” The phrases, “Further affiant sayeth not (or naught),” and “Comes now the plaintiff” are among her least favorite in legal writing.

Terry English, a solo attorney with offices in Bloomington and Bedford, said that while some lawyers could benefit from stronger writing skills, he thinks legal writing is clearer today than in years past.

“I’ve seen it evolve over the past 30 years or so – it used to be, from my perspective, substantially more stilted,” he said.


english-terryBW-mug.jpgEnglish

English is a former managing editor for the (Bloomington) Herald-Telephone, which later became the Herald-Times. He also taught advanced newspaper reporting at Indiana University and is a board member for the Indiana Journalism Hall of Fame.

“If you keep in mind that the sole reason you write is to communicate, then that takes a lot of the stuffiness out of it,” English said.

Lawrenceburg solo attorney Leanna Weissman holds undergraduate degrees in English and journalism from Indiana University. She works solely on appellate cases.

“I think having the journalism degree has helped me to write as a lawyer,” Weissman said. “Because you learn how to put things out there clearly, and you learn how to organize your thoughts in such a way that you put the most important thing first.

“Especially in the appellate arena, clear language is important,” she said. “I think they want you to get to the point and say it clearly and directly.”

English said judges may have limited time to read court documents, and that’s one reason why attorneys should be succinct in their writing.

“One of the things that I do notice about language is that I believe that a lot of attorneys believe that a judge in a particular case will have the opportunity to read and understand everything that they say, and I don’t believe that’s the case,” he said.

English relies on a tool of journalistic writing – the inverted pyramid – to make sure judges read the most important information first.

“I don’t believe that judges have the time to go over 10- or 12- or 14-page briefs,” he said.

Indiana Rules of Court, Rules of Trial Procedure, Rule 8(E)(1) specifies that: “Each averment of a pleading shall be simple, concise, and direct.” Although, not all court documents follow those guidelines.

“You’ll see these relatively simple motions that start with the complete history of the case,” Cowgur said.

Know your audience

In July 2010, the Indiana Judges Association’s Civil Instructions Committee announced the debut of simplified jury instructions. The Indiana Model Civil Jury Instructions use plain language and simple examples that help jurors understand concepts like circumstantial evidence. Lawyers, however, don’t need clarification of standard legal terms or concepts, English said.

English said that terms such as “res gestae” or “res ipsa loquitur” could be explained more clearly, but doing so isn’t necessary when writing for other attorneys.

Weissman agrees that attorneys should tailor their writing for the people reading it.

“A brief that you write to the trial court is going to be a lot different than the brief you write to the court of appeals,” she said.

Although lawyers and judges may be accustomed to seeing Latin phrases and other terms not found in everyday writing, some legal documents could benefit from a little fine-tuning, Cowgur explained.

“Especially in litigation documents … when you’re filing court pleadings, and when you write 30 days, it bothers me when you write ‘thirty (30) days.’” She said that using both the numeral and the word for “thirty” is a safeguard, because typographical errors are common with numerals.

“So that’s the reason for it, and it makes sense in complicated transactional documents, but when you’re asking for a 30-day extension of time, it really doesn’t make sense,” she said.

Teaching good writing

“Education in America now doesn’t teach students to be grammarians or great spellers,” English said. He said that while teaching journalism at IU, he spent a substantial amount of time teaching students about basic grammar.

“I think quite honestly that there needs to be even more of an emphasis on legal writing in law school,” he said. “You’re only required to have – as I recall – one class, one year, of legal writing and research. I think it would be beneficial to attorneys to have more than that.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT