Legal Writing is Not as It Should Be

8/11/2019 Legal Writing is Not as It Should Be

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2 SOUTHERN UNIVERSITY LAW REVIEW 37

1. THE WRITING HIGH SCHOOL AND COLLEGE STUDENTS DO ISUSUALLY SELF-EXPRESSION OR KNOWLEDGE-TELLING, NOT

ANALYSIS.The writing required of students in high school and college

is often what I call self -expression writing rather than exposit o-ry writing. Self-expression writing tends to be writer-focused, notreader-focused.5 That is, self-expression writers focus primarilyon expressing their own ideas. This is surely a necessary deve-lopmental step for improving writing skill, but it is two steps re-moved from the skill of analytical legal writing. Once high schooland college writers move beyond self-expression, they usuallyproduce writing that can be called knowledge -telling 6 or convey-ing information.

But legal writing is not self-expression, and it is anotherstep beyond knowledge telling. One author has referred to theskill of analytical legal writing as knowledge transforming. 7 Thus, legal writing is a form of expository writing in which thefocus should be on the readers ability to understand.8 This is incontrast to self-expression writing, where clearly and effectivelyconveying information to the reader is secondary to expressingone s self the way one desires. And it is in contrast to knowledge-telling, in which the primary purpose is conveying information,not analyzing a problem.

Of course, self-expression and knowledge-telling are neces-sary steps, as I ve acknowledged. But I can report, based onanecdotal evidence, that some students get little training even inthese two developmental steps. Some college curricula do notrequire much writing at all. For example, in my teaching of therequired, first-year legal writing course, I often have studentswho studied science or engineering in college. Many of these stu-

5. See Nancy Sommers & Laura Saltz,The Novice as Expert: Writing

the Freshman Year , COLLEGE COMPOSITION ANDCOMMUNICATION, Sept. 2004, at124, 127 (discussing college freshman writing as self expression).

6. See Christine M. Venter, Analyze This: Using Taxonomies to Sca f- fold Students Legal Thinking and Writing Skills , 57 MERCER L. REV. 621, 638(2006) (noting that some law students mistakenly see analytical legal writing asa knowledge-telling task).

7. Id. at 639.8. W AYNESCHIESS, WRITING FOR THELEGAL AUDIENCE xv-xvi (2003).


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goal. 11 That s because [f]irst-year students must learn a largebody of fairly objective information before they can write any-

thing . . . .12

Let me explain. Here is a list I compiled of what I try toteach in my first-year, first-semester legal-writing course. Oneover-simplified description of the course would be to call it acourse covering the legal memorandum. I try to teach studentshow to do each of the following:

Determine the question raised in a legal problemand express that question in writing.

Determine the legally and contextually relevantfacts of a legal problem and express them in writ-

ing.Determine the best course of research for a legal

problem and find relevant authorities to analyze alegal problem.

Choose the appropriate authorities to use to ana-lyze a legal problem.

Order the authorities to be used to analyze a le-gal problem and explain them in writing.

Analyze a legal question in light of the authori-ties and express the legal analysis in writing.

Recognize possible counter-analyses and expressthem in writing.

Use correct citation form and placement.

Use correct and appropriate conventions of legalwriting.

With all these tasks to accomplish, the legal-writing teacherdoesn t have time to make the students into good stylists.13

11. Id. 12. Id. 13. See Terry Jean Seligmann, Why Is A Legal Memorandum Like An

Onion? A Students Guide to Reviewing and Editing , 56 MERCER L. REV. 729,


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2009] LEGAL WRITING IS NOT WHAT IT SHOULD BE 5

And that s just the first semester. I hope you ll see why Ihaven t much time for focusing on the things that would make

mediocre legal writing good or good legal writing great, like voice;rhetoric; fine points of grammar, punctuation, usage, and style;and sentence-level skills, like use of subordination, use of passiveor active voice, placement of modifiers and relative clauses, andso on.

I ll frankly tell you that struggling to cover just the funda-mentals of written legal analysis and then to be told that yourstudents can t write is a frustrating and maddening experience. Yet it is an experience I have had, and one I try not to take per-sonally. After all, the skill of written legal analysis is mostlyinformation of the sort the faculty [and lawyers and judges] hasforgotten it ever had to learn. 14

Compounding the problem that those who do not teachfirst-year legal writing frequently do not understand or remem-ber the nature of the course and its limitations is the second-class status of the legal writing course. Professor Lisa Eichhorn,who has taught civil procedure and legal writing, commentedthat her students perceptions were that legal writing is not areal law school course.15

Then we doubly compound the problem because at most lawschools, those who teach the first-year legal writing course aresecond-class citizens.16 Often, those who teach legal doctrine, le-gal theory, and substantive courses are tenured and well-paid,

732-37 (2005) (describing the depth and complexity of written legal analysis inthe traditional legal memorandum).

14. Douglas Laycock,Why the First-Year Legal-Writing Course Cannot Do Much About Bad Legal Writing , 1 SCRIBESJ. LEGALWRITING 83, 83 (1990).

15. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Sup- plement? , 40 ARIZ. L. REV. 105, 131-33 (1998).

16. See Jo Anne Durako, Second-Class Citizens in the Pink Ghetto:Gender Bias in Legal Writing , 50 J. LEGALEDUC. 562 (2000) (using salary surveydata to show that even within the so-called pink ghetto of legal writing, wo m-en directors of legal writing get lower salaries than male directors of legal writ-ing. Women directors also have weaker titles, are more likely to be teachingexclusively in the first year, and have less job security);See also Jan M. Levine,You Cant Please Everyone, So Youd Better Please Yourself: Directing (OrTeaching In) a First-Year Legal Writing Program , 29 V AL. U. L. REV. 611 (1995)(describing teacher status, program design, and staffing issues for legal writingprograms).


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while those who teach legal writing are untenured and poorlypaid:

[Law school] hierarchy is gendered, with the lowestrank overwhelmingly composed of women and thehighest rank overwhelmingly composed of men.The players in this status hierarchy are the facul-ties and administrations of American law schools. At the top are the tenured doctrinal professors,roughly 70 percent of whom are male; at the bottomare legal writing professors, roughly 70 percent ofwhom are female.17

A discussion of a second-class status of legal-writing faculty

is beyond the scope of this article. There are several authors whohave written extensively on the subject. For further reading, Iwould particularly recommend the writings of Professors KathrynStanchi and Jan Levine.18

3. L AW SCHOOLS DO NOT ADEQUATELY TRAIN STUDENTS IN LEGALDRAFTING.

Of the many types of legal writing, legal drafting which Icall the creation of binding legal text, 19 is typically of the poor-est caliber.20 The legal drafting expert Kenneth Adams labels it the dysfunctional language of mainstream contract drafting . . .

.21

It s worth asking why this should be so if [l]ike other la-wyering skills, drafting can be done well or poorly. Doing it well

17. Kathryn M. Stanchi, Who Next, The Janitors? A Socio-FeministCritique of the Status Hierarchy of Law Professors , 73 UMKC L. REV. 467, 467(2004).

18. See generally Kathryn M. Stanchi & Jan M. Levine,Gender andLegal Writing: Law Schools Dirty Little Secrets , 16 BERKELEY WOMENS L.J. 1(2001); Pamela Edwards,Teaching Legal Writing as Womens Work: Life on theFringes of the Academy , 4 C ARDOZOWOMENS L.J. 75 (1997); Ilhyung Lee,TheRookie Season , 39 S ANTACLARAL. REV. 473 (1999); Mary Beth Beazley,Ridd i-kulus!: Tenure -Track Legal-Writing Faculty and the Boggart in the Wardrobe , 7SCRIBESJ. LEGALWRITING 79 (1998-2000).

19. W AYNE SCHIESS, PREPARING LEGAL DOCUMENTSNONLAWYERSC ANREAD ANDUNDERSTAND25 (2008).

20. K ENNETH A. ADAMS, A M ANUAL OFSTYLE FORCONTRACTDRAFTINGxxvi (2d ed. 2008).

21. Id.


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is something that can be taught and learned. 22 One answer isthat law schools aren t teaching legal drafting. The legal drafting

expert Joseph Kimble has recognized the problem:

[T]he schoolshave neglected legal drafting. 23 The two areas commonly covered in legal-writing courses

are objective legal analysis in legal memorandums and persua-sive legal analysis in briefs. Yet the lawyer and legal writing au-thor John Phelps Warnock has asserted that [m]any successfullawyers never write a brief or read one during their entire ca-reers. 24 And the nationally known legal writing expert BryanGarner has asserted that every lawyer occasionally gets involvedin legal drafting of some sort even if it s only a settlementagreement. 25 Most practicing lawyers tell me that they did notstudy legal drafting in law school. In an informal survey I con-ducted of 330 practicing lawyers, seventy-nine percent said theirrequired course on legal writing did not cover legal drafting.26

If many lawyers never write briefs and if nearly all lawyersdo legal drafting, then it s unfortunate that so many law schoolsfail to train students in legal drafting. Of course, its not a prob-lem found only in law schools, according to Robert Dick:It isdifficult to convince the profession in general that drafting is aspecial skill that requires intense application. 27 Maybe legaldrafting is not taught because many lawyers do not see a prob-lem: We have served with hundreds of legally trained legisl a-tors, lawyers, and law professors in various drafting environ-

ments, say Robert J. Martineau and Michael B. S alerno. Of

22. THOMASR. H AGGARD, LEGALDRAFTING IN ANUTSHELL vi (1996).23. Joseph Kimble,How to Mangle Court Rules and Jury Instructions ,

8 SCRIBESJ. LEGALWRITING39, 59 (2001-2002).24. JOHN PHELPS W ARNOCK & H AROLD C. W ARNOCK , EFFECTIVE

WRITING: A H ANDBOOK WITHSTORIES FORL AWYERS 35 (2003).25. BRYAN A. G ARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH

EXERCISES 89 (2000).26. Survey results on file with the author. Here are some typical com-

ments from survey responders: Legal drafting is essential to the practice ofmany attorneys. I would have benefitted from a course in legal drafting. I donot think law schools provide enough legal-drafting training. Most law st u-dents that we see have had very little exposure to the real world of legal draft-ing, and it shows. Providing more training in the fundamentals of legal draftingwould likely diminish the learning curve that now exists.

27. ROBERTC. DICK , LEGALDRAFTING 4 (2d ed. 1985).


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these, only a few have ever confessed an inability to draft anytype of legal document. 28

My own experience confirms that lawyers, as a general rule,do not draft well. I look at the legal drafting I see in routine legaldocuments and it is generally filled with archaisms, unnecessarylegalisms, and other drafting errors. Law students and lawyersneed drafting training, and most do not get it. That gap is onecause of poor legal writing.

4. L AWYERS IMBIBE LOTS OF POOR WRITING FROM JUDICIALOPINIONS AND OTHER REQUIRED READING.

If lawyers write poorly, then [w]here did we learn suchstuff? 29 The author and writing expert Edward Good has theanswer:

We learned it from judges, legislators, regulators,headnote writers, treatise writers, and editors forC.J.S., A.L.R., and Am. Jur. 2d. We learned to spewout poorly written judicial fluff, endless legislativegoo, brow-wrinkling regulatory ooze, and mounds ofwords posing as sentences. We learned to buildthose weighty sentences, stretching on forever,with stuffy abstractions, piles of pillowy nouns, andimprecise compound prepositions. We learned toprefer the passive voice. We learned to proliferateclauses. We learned to write like the stuff we read.We learned, in short, to break every rule of style inthe book.30

For three years, every law student reads that stuff. Butmost of all, law students read judicial opinions, lots and lots of judicial opinions. Let us remember that the judicial opinions inour casebooks were not chosen for their writing style; they werechosen for their content. But many judicial opinions are poorlywritten, and most are mediocre at best. One commentator has

28. ROBERT J. M ARTINEAU& MICHAELB. S ALERNO, LEGAL, LEGISLATIVE, ANDRULE DRAFTING INPLAINENGLISH 3 (2005).

29. C. EDWARDGOOD, MIGHTIER THAN THESWORD: POWERFULWRITINGFOR THELEGALPROFESSION xx (1989).

30. Id.


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said that lawyers, in their rea ding, are exposed to the largestbody of poorly written literature ever created by the human

race.31

What s more, the content of judicial opinions is almost al-ways laid out and displayed poorly: In contrast [to the user aidsin a West-published opinion], casebooks assigned to beginninglaw students are stripped of even these convenient guides. In-stead students are presented with pages of choppy, edited opi-nions without headnotes, subtitles, white space, colored print, orother textual highlights. 32

Once students finish law school and begin practicing law,they continue to read judicial opinions and other legal documents.So the pattern continues. It is not my intention to be hard on judges. Their writing is not any worse than the writing of prac-ticing lawyers or law professors. It s just that their writing issubject to a lot more scrutiny and gets a lot more attention. Andbecause we spend so much time reading judicial opinions, theirwords, rhythms, and patterns enter our brains. We begin tothink and write like the judicial opinions we read, and that s notgood: Lucidity does not come naturally to most law students,perhaps because they have been forced in their legal studies toread so much bad writing that they mistake what they ve read forthe true and proper model. 33

David Mellinkoff elaborated the effect of all this reading:

After three years of forced reading of opinions, lawstudents respond automatically to words by judges.Good writing or bad writing, it is a judges writing.This is the language of those who decide the cases.This is how it is done. The recollection of how itwas said often outlasts the recollection of what wassaid. For better or worse, the opinion affects the

31. John M. Lindsey, The Legal Writing Malady: Causes and Cures ,204 N.Y. L.J. 1, 2 (1990) (explaining the poor writing of American lawyers).

32. Janeen Kerper, Lets Space Out: Rethinking the Design of LawSchool Texts , 51 J. LEGAL EDUC. 267, 268-69 (2001) (article discussing the im-portance of design and white space in law textbooks).

33. TOM GOLDSTEIN& JETHRO K. LIEBERMAN, THE L AWYERS GUIDE TOWRITINGWELL 30 (1989).


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basic writing pattern of the profession. And thatpattern is inseparable from the law itself. 34

With judicial opinions as our earliest models of legal writ-ing, it s no wonder legal writing is not what it should be.

5. L AWYERS RELY ON FORM DOCUMENTS THAT ARE POORLYWRITTEN.

If legal writing is not what it should be, then when lawyersrely on, or copy and paste from, a previous document, they areoften relying on something that is not well written. Every lawyerknows that relying on previous documents is common in lawpractice. Lawyers refer to the use of previous documents as using

forms, although I have heard them referred to as templatesand precedents. All lawyers use forms, not just transactionaldrafters. Many lawyers rely on forms for letters, court docu-ments, and other types of nontransactional documents.

Why do lawyers use forms? To save time, to save money, togive clients a better value, and to take advantage of previousdocuments that have worked. Forms are a necessity. No lawyercan get by in a typical practice today without them. The time andexpense that would result from writing everything from scratchwould be enormous. A busy lawyer cannot afford the necessarytime to engage in original drafting for all documents required bya client. 35

Forms may be a necessity, but they have their problems.[E]ven a good form followed blindly, without proper regard to thefactors of appropriateness of both style and content, can oftenlead to stylistic monstrosities that utterly fail to accomplish thedesired purposes. 36 Here are four specific drawbacks of forms.

First, forms can lead to hurried, lazy writing because theyare easy to use. David Mellinkoff said that [t]hey are a quick,cheap substitute for knowledge and independent thinking. 37 For

34. D AVID MELLINKOFF, LEGAL WRITING: SENSE AND NONSENSE 70(1982).

35. ROBERTC. DICK , LEGALDRAFTING 11 (2d ed. 1985).36. SIDNEY F. P ARHAM, JR., THE FUNDAMENTALS OFLEGAL WRITING 16

(1967).37. D AVID MELLINKOFF, LEGAL WRITING: SENSE AND NONSENSE 101

(1982).


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example, the form the lawyer used in an earlier document can bequickly converted into a first draft for a new document. But just

because the lawyer can do this quickly does not mean it should bedone. Believing that a form can be quickly adapted to a new doc-ument isn t in itself wrong, but it can lead the lawyer to compla-cency. Complacency is a big drawback of using forms and contri-butes to poor legal writing.38

Second, forms are often out of date in language and style.Professor Thomas Haggard says that [t]he best thing about[form] books is often not the language they suggest for specificprovisions (which is usually atrocious), but rather the factualchecklists they contain. 39 Forms are well known for wordiness,old-fashioned style, and unnecessary formality, all of which areconsidered to be poor legal writing.40

Third, forms usually have text and terms originally writtenby several different writers. Forms are often a hodge podge re-sulting in inconsistent style. Yet legal drafting is supposed to bedevoid of any writer s voice ,41 so why is an inconsistent voice aproblem? The problem is more than voice:[V]erbatim inclusionof a clause lifted from someone else s document can and willcreate anomalies of style that not only offend the artistic sensibil-ities . . . but frequently lead to confusion and ambiguity. 42

Fourth, forms can, and often do, contain unnecessary lan-guage, irrelevant text, and extra stuff that isn t needed . In otherwords, as Howard Darmstadter says, lawyers never seem to cut

language from a form; they only add:Forms tend to grow by a c-cretion, with many persons adding paragraphs and clauses with-out much understanding of what has gone before. The result isfrequently a form whose numerous intricacies and subtleties are

38. W AYNE SCHIESS, BETTER LEGALWRITING: 15 TOPICS FOR ADVANCEDLEGALWRITERS 195 (2005).

39. THOMASR. H AGGARD, CONTRACTL AW FROM ADRAFTINGPERSPECTIVE 10-11 (2003).

40. W AYNE SCHIESS, BETTER LEGALWRITING: 15 TOPICS FOR ADVANCEDLEGALWRITERS 195 (2005).

41. Joseph Kimble,How to Mangle Court Rules and Jury Instructions ,8 SCRIBESJ. LEGALWRITING 39, 52 (2002).

42. SIDNEYF. P ARHAM, JR., THE FUNDAMENTALS OFLEGALWRITING 16-17 (1967).


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invisible to all sides. 43 Besides, as the form gets longer and long-er, the writing gets worse and worse.

Given the economic necessities of forms, and the realities ofthe four drawbacks, lawyers should be much more systematicabout forms and their use. Every office of lawyers should prepareand maintain a database of up-to-date forms. The drafting expertKenneth Adams has recommended such a practice,44 but it is spo-radic at best.45 Besides, forms are hard to keep up with:

They continue to be published, hundreds of thou-sands of words pouring off the printing presseseach year, swamping the legal profession with sen-tence upon sentence for pleadings, affidavits, decla-rations, wills, leases, conveyances, notices, bills of

lading, mortgages, trust deeds, hire-purchaseagreements, assignments, bonds, highway agree-ments, covenants and any other documents thatone lawyer imagines another might need.46

Forms, although useful, contribute to poor legal writing.

6. IN WRITING LEGAL ANALYSIS, MANY DIGEST THE AUTHORITIESSUPERFICIALLY ; IN DRAFTING AGREEMENTS, MANY UNDERSTAND

THE TRANSACTIONS SUPERFICIALLY .

I teach first-year legal writing, and as has already been as-

serted here, that job is mostly about teaching written legal analy-sis. I teach practicing lawyers in continuing-legal-education se-minars. That too focuses heavily on written legal analysis. And Ialso coach individual lawyers on written legal analysis. I there-fore see, read, and comment on large amounts of written legalanalysis much of which is weak.

Putting aside sentence-level writing concerns like grammar,punctuation, usage, and the conventions of legal English, I see

43. HOWARDD ARMSTADTER, HEREOF, THEREOF, AND E VERYWHEREOF: A CONTRARIANGUIDE TOLEGALDRAFTING 28 (2002).

44. K ENNETH A. ADAMS, A M ANUAL OFSTYLE FORCONTRACTDRAFTING xxix-xxxi (2d ed. 2008).

45. Id. 46. PETER BUTT & RICHARDC ASTLE, MODERNLEGALDRAFTING: A GUIDE

TO USINGCLEARERL ANGUAGE 13 (2d ed. 2006).


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analytical, structural, and organizational problems in the writtenlegal analysis of some law students and lawyers. I have a theory

about a significant cause of those problems, but first let me bespecific about the problems. Here are the main analytical andstructural problems I see in the written legal analysis of law stu-dents and lawyers:

Failure to state the conclusion, prediction, or de-sired result up front with reasons. 47

Failure to express early on the key rule, principle,or concept that will guide the conclusion, predic-tion, or desired result.48

Failure to describe even in a succinct way theauthorities that support the key rule, principle, orconcept.49

Superficial application of the rule, principle, orconcept to the specific problem at issue: Applica-tion that is terse, abstract, general, and shallow in-stead of specific, thorough, targeted, and convinc-ing.50

47. This failure is one of the greatest failings of all legal writing, and iswidely discussed in the legal-writing literature. Experts agree that you shouldstate the conclusion, prediction, or desired result up front.See generally JOSEPHK IMBLE, LIFTING THE FOG OF LEGALESE 73 (2006) (All legal writing should befront loaded. It should start with a capsule version of the analysis. It shouldpractice the art of summarizing. ); FREDERICG. G ALE& JOSEPH M. MOXLEY , HOWTO WRITE THE WINNING BRIEF 107 (1992) (By establishing the main points of adocument before launching into a detailed analysis of the points, you show read-ers what information to look for. ); STEVEN D. STARK , WRITING TO WIN: THELEGAL WRITER 144 (1999) (All briefs should have a first -page, introductorysummary, whether the rules require one or not. ); IRWIN ALTERMAN, PLAIN AND ACCURATESTYLE INCOURTP APERS 97 (1987) (In each part of your legal analysis,give the bottom line first, plainly and without fanfare. ).

48. See W AYNESCHIESS, THE LEGALMEMO: A B ASICGUIDE 38 (2008). 49. See W AYNESCHIESS, THE LEGALMEMO: A B ASICGUIDE 61 (2008) (on

the importance of explaining authorities).50. W AYNE SCHIESS, BETTER LEGALWRITING: 15 TOPICS FOR ADVANCED

LEGALWRITERS 173-74 (2005) (detailing the use of specifics in analogical analy-sis).


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Failure to connect paragraphs.51

These analytical weaknesses could be caused by laziness,intellectual limitations, or haste. But I think the most likelycause is the failure to understand the substantive material well.Perhaps the writer relied too heavily on headnotes or other edi-torial enhancements in the authorities. Perhaps the writer didn tread the authorities carefully. Or perhaps the writer wrote in astream-of-consciousness style, filling up the page with a series ofloosely connected thoughts, without having taken the time toplan or master the material and match that material to a soundstructure. 52 Naturally, the failure to understand the materialshows up as an inability to write effectively. In fact, in my expe-rience teaching novice legal writers and tutoring young lawyers, I

can almost feel it as I read: When the description of the authori-ties is rote, when the analysis is superficial, and when the con-nections between ideas are weak or missing, I suspect one culpritfirst: failure to understand the material.

Failure to understand can muck up written legal analysis,but it hurts transactional drafting, too. It s not surprising that anovice lawyer has a hard time understanding the intricacies of asophisticated transaction. I confess that as a novice transactionallawyer at a large law firm, I often had little idea how the transac-tions actually worked. I should have tried harder to gain thatunderstanding, and so should every novice lawyer. Bryan Garnerputs it this way: If you don t understand a form provision or

51. ANNE ENQUIST & L AURELCURRIE O ATES, JUST WRITING: GRAMMAR, PUNCTUATION, AND STYLE FOR THELEGAL WRITER 59 (2d ed. 2005)(Some legalwriters have a tendency to write as though others can read their minds. Thesewriters omit transitions because the connections between ideas are obvious tothem.). See also TERRI LECLERCQ, GUIDE TO LEGAL WRITING STYLE 15 (4th ed.2007) ( As the writer, it is your job to connect words and ideas so that yourreaders don t have to do the mental work for you.); BRYAN A. G ARNER, THEELEMENTS OFLEGALSTYLE 65 (2d ed. 2002)(Paragraphing should also show theprogression from one idea to the next.). 52. BRYAN A. G ARNER, THE WINNING BRIEF: 100 TIPS FOR PERSUASIVEBRIEFING IN TRIAL AND APPELLATE COURTS 4, 5 (2d ed. 2004) (recommending thatlegal writers let the architect aspect of their writing personas do the importantwork of making connections and planning the structure).


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Sometimes urgency forces precedence over every-thing else. Get it done. Get something out. Weve

got to file. This is a rush. The writer is underpressure to take shortcuts. This has become thenormal environment of most legal writing, and isone of the principal reasons why so much of it is sobad.56

The unfortunate fact is that this kind of rushed approachoften gets the job done it is often good enough, or has to be.One reason it gets by is that many of us have been writing thisway under a deadline and without sufficient time devoted topolishing since college. Many young lawyers seem to havesurvived writing assignments in college and law school (with the

exception of law-review writing) by turning in what were basical-ly first drafts, lightly edited to fix glaring errors. They are un-prepared to regard editing as a serious, laborious activity. 57 Andso we lawyers continue to churn out mediocre or poor writing; theexigencies of modern life and law practice almost require it.

8. SOME LAWYERS HAVE A MISGUIDED SENSE OF PROFESSIONALISM, LEADING TO A FORMAL WRITING STYLE THAT IGNORES AUDIENCE

NEEDS.

The kind of legal writing I m referring to is often called l e-galese. Definitions vary:

[L]eg al jargon that has an everyday Englishequivalent. 58

The type of jargon used in the legal profession . .. .59

56. D AVID MELLINKOFF, LEGAL WRITING: SENSE AND NONSENSE 116(1982).

57. STEPHEN V. ARMSTRONG& TIMOTHYP. TERRELL, THINKING LIKE AWRITER: A L AWYERS GUIDE TOEFFECTIVE WRITING ANDEDITING 298 (2003).

58. BRYAN A. G ARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITHEXERCISES34 (2001).

59. DEBORAHBOUCHOUX, ASPEN H ANDBOOK FORLEGALWRITERS 98 (2ded. 2009).


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[L]anguage that lawyers would not use in ord i-nary communication but for the fact that they are

lawyers.60

But most legalese has one or more of the following traits:

Use of Latin where English would do.61

Use of archaic words where modern words woulddo.62

Use of elevated diction (ten-dollar words) whereeveryday English would do.63

Overuse of the passive voice.64

Overuse of nominalizations.65

Excessive sentence length.66

Use of insider vocabulary or jargon even when notaddressing insiders.67

Young lawyers I forgive: As neophytes who want to be a c-cepted in the legal establishment and are afraid to be different,most young lawyers sink deeper into the bad writing habits theymay have learned . . . . They coin long words and pepper their

60. PETER BUTT & RICHARDC ASTLE, MODERNLEGALDRAFTING: A GUIDETO USINGCLEARERL ANGUAGE 144 (2d ed. 2006).

61. RONALD L. GOLDFARB & J AMES C. R AYMOND, CLEARUNDERSTANDINGS: A GUIDE TOLEGALWRITING 6 (1982).

62. CHRISTINE MOWAT, A PLAIN L ANGUAGE H ANDBOOK FOR LEGALWRITERS 287-88 (1998).

63. C ARL FELSENFELD & ALAN SIEGEL, WRITING CONTRACTS INPLAINENGLISH 154 (1981) (stating that [i] n general, given a choice between simplerand more complex language, the lawyer-writer veers toward the more complex.The more official the writing, the more pronounced this choice. Letters mayusually be written with the most ponderous words available.).

64. ANNE ENQUIST & L AURELCURRIE O ATES, JUST WRITING: GRAMMAR, PUNCTUATION, ANDSTYLE FOR THELEGALWRITER 139 (2d ed. 2005).

65. ADAM FREEDMAN, THE P ARTY OF THE FIRST P ART: THE CURIOUSWORLD OFLEGALESE 11 (2007).

66. RICHARDC. W YDICK , PLAINENGLISH FORL AWYERS 33 (5th ed. 2005).67. See RUDOLF FLESCH, HOW TO WRITE PLAIN ENGLISH: A BOOK FOR

L AWYERS ANDCONSUMERS 38-39 (1979).


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writings with foreign cant and stuffy phrases . . . . 68 And [t] hosenew to a profession are prone to use its special vocabulary at

every opportunity, to show that they belong.69

In mastering le-galese, which they must, young lawyersdon t always know whichwords and constructions are necessary in legal writing and whichare fluff.70 Besides, they re learning a new language, and it s thegoal of the novice to master the legal language, whatever it is.What s more, they are often guided, or misguided, by examples oradvice from senior attorneys: Too many law students reportback from their first jobs that the clear, simple style they wereurged to use in school is not acceptable to the older lawyers forwhom they work. 71 So when young lawyers, out of a misguidedsense of professionalism, try to sound like lawyers, I forgivethem.

But when an experienced lawyer writes in a fluffy, legalis-tic, hyper-formal style, I m unhappy. Experts should shed lega-lese.72 Experts should try not to sound like a lawyer. Expertsshould strive to communicate, not to impress. Almost no one isimpressed by traditional legal language:

[W]e outsiders are not persuaded. We suspect thatlawyers use the old language at times because it isconveniently available in form books, or because itmakes them sound like lawyers, or because theyare blissfully unaware of how odd it really is, or be-cause they think it will fill us outsiders with aweand a willingness to pay handsomely for documentsbeyond our ken. We even suspect that on occasionlawyers themselves do not understand the lan-guage of the law . . . .73

68. RONALD L. GOLDFARB & J AMES C. R AYMOND, CLEARUNDERSTANDINGS: A GUIDE TOLEGALWRITING 4 (1982).

69. ROBERTGUNNING, THE TECHNIQUE OFCLEARWRITING 259 (1968).70. See BRYAN A. G ARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT

WITHEXERCISES 34 (2000).71. RICHARDC. W YDICK , PLAINENGLISH FORL AWYERS 4 (5th ed. 2005).72. BRYAN A. G ARNER, LEGAL WRITING IN PLAIN ENGLISH: A TEXT WITH

EXERCISES 34 (2001).73. LOUISE M AILHOT& J AMES D. C ARNWATH, DECISIONS, DECISIONS . . .

A H ANDBOOK FORJUDICIALWRITING xiv (1998).


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Yet some lawyers tell me they need to write in a formal, le-galistic style so clients are intimidated. The intimidated client

needs the lawyer, I m told. Some lawyers tell me clients preferand expect traditional legalese.74 The legalese is said to reassurethe client. And although no lawyer has ever confessed it to me,some lawyers seem to take pride in sounding stuffy and formal.

I reject those positions, and am not alone in suggesting thatwriting in a way that requires a client to consult a lawyer to un-derstand the document is bad. Over forty years ago, Sydney Par-ham said that [w]e cannot in justice to our job expect the clientto employ us to interpret our own documents nor should we re-quire him to consult our professional brethren for this purpose. 75

The busy-ness factor contributes to the problem of false pro-fessionalism, too. Legal writers are usually busy, and b usy writ-ers often operate on automatic pilot without much thought to thecharacter they are portraying in their prose. And when legalwriters are on automatic pilot, most tend to drift into more formalprose because they have read so much of it during their educa-tion. 76

But all lawyers can do better, not only by improving writingskills generally, but also by thoughtfully considering the clients.Most clients prefer and respect those who can write in everydayEnglish:

If the clients can read the contract more easily andresolve contract questions themselves, doesn t thatmean fewer billable hours for the lawyer? My ex-perience is that clients on both sides of a negotia-tion respect the lawyer s a bility to express ideasclearly. When they see good writing, they are lesslikely to try to do it themselves. While most busi-ness people can fake legalese, writing in plainEnglish takes practice. It takes real talent to ex-

74. See W AYNE SCHIESS, BETTER LEGAL WRITING: 15 TOPICS FOR

ADVANCEDLEGAL WRITERS 128-31 (2005) (setting out and debunking the myththat legalese attracts and retains clients).

75. SIDNEY F. P ARHAM, JR., THE FUNDAMENTALS OFLEGAL WRITING 72(1967).

76. Stephen V. Armstrong & Timothy P. Terrell, UnderstandingStyle in Le gal Writing , PERSPECTIVES: TEACHING LEG. RES. & WRITING, Fall2008, at 43, 45-46.


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press complicated legal, technical, financial, andcommercial ideas in a straightforward way.77

Thus, we must not write on autopilot; we must consider theneeds of our audience. We must consider how we sound to thataudience. We must break bad habits, as Thomas Murawski haspointed out: Practice a hyper-formal, . . . legal style long enough,and simple writing can start to sound simpleminded.78 In fact,whenever we sit at the keyboard, we need to decide what is theappropriate degree of formality for that piece of writing, remem-bering to base that decision on who our audience is, not what thedocument is.79 In short, we have to care:

Care enough to work at your craft. Become critical-

minded about words. Read the best books on writ-ing. Pay attention to models. Keep at hand agroup of current references on grammar and usage.Welcome good editing. Put yourself in your read-ers shoes and resolve not to waste their time. Above all, revere clarity and simplicity in a stylethat s straightforward and lean. 80

Care enough to make your legal writing what it should be.

9. M ANY LAWYERS ARE COMPLACENT, BELIEVING THEIR WRITING IS ABOVE AVERAGE OR BETTER.

Law yers have two common failings. One is that they donot write well, and the other is that they think they do. 81 Onelawyer has said that he never met a lawyer who didn t think hewas a great writer; 99% of the time the lawyer is deluded.82

77. David T. Daly,Why Bother to Write Contracts in Plain English? , 78MICH. B.J. 850, 850-51 (1999).

78. THOMAS A MURAWSKI, WRITINGREADABLEREGULATIONS x (1999).79. MICHLE M. ASPREY , PLAIN L ANGUAGE FORL AWYERS 87 (3d ed.

2003). 80. JOSEPHK IMBLE, LIFTING THEFOG OFLEGALESE 98 (2006).81. Carl Felsenfeld,The Plain English Movement in the United States ,

6 C AN. BUS. L.J. 408, 413 (1981-82).82. THEODORE L. BLUMBERG, THE SEVEN DEADLY SINS OF LEGAL

WRITING 1 (2008).


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When I say lawyers are complacent about their writing, Ihope I do not sound too critical. I was complacent about my own

writing while I was in law practice for three years and even for afew years after I became a legal-writing teacher. I think compla-cency about writing is a tradition in our profession. Here are atleast three reasons for it.

First, the writing-intensive nature of law practice surprisessome. For example, when I began law school, I did not under-stand how important writing would be for my job. Once I arrivedat a law firm, all I did was research and write, and that surprisedme. Yet a journalism student, for example, understands from thebeginning that writing will be an important part of the job. Manylaw students do not. They often assume, as I did, that oral skillswould be the most important.83

Second, prior success in academics, or in writing specifical-ly, often breeds unwarranted confidence. For example, I got goodgrades in college and, to a certain extent, in law school. Many ofthese grades were based on papers and written exams. I there-fore concluded that I must be a good writer. Not so. I was an av-erage writer. So part of the problem is that we believe that smartpeople automatically write well. I later got a job at a major lawfirm, where I was hired based in part on my writing. I thereforeconcluded that I must be a good writer. Not so. I was still anaverage writer, as I now know. So part of the problem is that jobsuccess persuades us that we must be good writers.

Third, lawyers don t consult writing sources enough. Forthree years in law practice, and for my first three years as a le-gal-writing teacher, I owned no books on the subject of legal writ-ing other than the textbook I used in my course. I owned no le-gal-writing style guides. I did not own a usage dictionary. I oftenrelied on half-remembered platitudes from junior high and highschool to deal with the demands of legal writing. I was not alone.In seminars I teach, I regularly ask participants what writingguides they own or use. I get a moderate number of references toThe Elements of Style and a handful of references to Bryan Garn-er s The Redbook . That s usually about it; the vast majority oflawyers does not own and never consult a writing source. Yet

83. Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Sup- plement? , 40 ARIZ. L. REV. 105, 109 (1998) (suggesting that an ancient oral tradi-tion continues to have force in legal education).


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a ttorneys need to consult the same dictionaries and stylebooksthat other professional writers and editors use.84 If I were to ask

the same question of a group of journalists, every hand in theroom would go up and most would have multiple writing guidesto consult.

That s right. We think we re good. We don t take the craftof legal writing as seriously as we should. Ask a room full of law-yers how many consider their writing to be above average, and amajority will raise a hand. Ask that room of lawyers what per-centage of legal writing is above average, and most hands will goup at about 25%. We seem to consider our own writing to beabove averagebut almost everyone else s as below average .85

Ultimately, it is perhaps simply our attitude, as BryanGarner notes: As a whole, the profession disdains literary a c-complishment within law . . . . 86 When Garner says literary a c-complishment, I take hi m to mean high-level writing skill. Buteven if we don t disdain it, we are certainly satisfied in fallingshort of it. Too many take the attitude disparagingly portrayedby Terri LeClercq: Never change your own writing style, even ifsomeone takes the time and has the patience to point out yourproblems.87

Perhaps it is more than not knowing how much writing lawrequires, more than over-reliance on past academic success, andmore than failure to consult the best sources. Maybe it s just thatwe re in a rut; maybe it s just habit: Old hands train new ones,

old [documents] make convenient models, and old ways seem saf-est. Precedent, important to substance, retards thinking aboutstyle.88 So what can we do?

84. RONALD L. GOLDFARB & J AMES C. R AYMOND, CLEARUNDERSTANDINGS: A GUIDE TOLEGALWRITING 55-56 (1982).

85. See Joseph Kimble, Lessons in Drafting from the New FederalRules of Civil Procedure (Part 3) , 86 MICH. B.J. 44, 44 (2007) (noting that thegreat disconnect is that while most transactional lawyers say that a very smallpercentage of the legal drafting they see is of a genuinely high quality, almostall of them would claim to produce high-quality documents. ) (citing Bryan A.Garner, Presidents Letter , THE SCRIVENER 1, 1 (Winter 1998)).

86. BRYANG ARNER, A DICTIONARY OFMODERNLEGALUSAGE 518 (2d ed.1995).

87. TERRILECLERCQ, EXPERT LEGALWRITING 184 (1995).88. THOMAS A. MURAWSKI, WRITINGREADABLEREGULATIONS x (1999).


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Legal Writing is Not as It Should Be

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