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.
“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.
“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.”
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.”•