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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Category Archives: Legalese

“No Passion in the World is Equal to the Passion to Alter Someone Else’s Draft.” H.G. Wells

20 Wednesday Dec 2017

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Persuasive Writing, Plain Language, Punctuation, Readability

≈ Comments Off on “No Passion in the World is Equal to the Passion to Alter Someone Else’s Draft.” H.G. Wells

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Douglas E. Abrams, Editing, Legal Writing, Missouri Bar Journal, SSRN, University of Missouri School of Law

We are the Products of Editing, Douglas E. Abrams, Precedent, Vol. 2, No. 2, pp. 12-14, Spring 2008; University of Missouri School of Law Legal Studies Research Paper No. 2008-18.

Available at SSRN: https://ssrn.com/abstract=1138300 

How many of us take the time to proof and edit what we write? I suspect that most, if not all, good legal writers do it. No, I’m not talking about simply running a review of your grammar, style, and punctuation in Microsoft Word. I mean really reading, proofing, and editing what you write.

When you write for the court, what is your goal? To be understood? Of course. To persuade? Absolutely. To do that, you must keep your reader’s attention. Long sentences that take up an entire paragraph, legalese, and unnecessary words are boring – period. Why would anyone want to read a quote takes up an entire page?

Persuasive legal writing is an art. It takes work, and that means editing and polishing until your writing is clear, concise, and logically flows from one point to the next. Your goal, as I’ve mentioned before, is that, by the time your judge finishes reading your brief or other document, that judge is subconsciously nodding in agreement.

As someone who has seen a state supreme court judge literally throw a party’s brief across the room because it was so badly written, I promise that judges will not waste time reading legal gibberish. If a judge finds one side‘s brief difficult to read, how much frustration does it take to put it down and pick up the other side’s well-written brief to get the facts of the case and legal argument? Folks, it doesn’t take much.

Don’t take my word for it. Mr. Abrams’ article does an excellent job. -CCE

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Plain English Legal Writing – Proof Positive That It Works.

12 Monday Dec 2016

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Judges, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language, Readability

≈ Comments Off on Plain English Legal Writing – Proof Positive That It Works.

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Joseph Kimble, Legalese, Michigan Bar Journal, Plain English Column

The Proof is in the Reading, Plain Language Works Best, by Joseph Kimble, 52 Mich. B J. (Oct. 2016)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2972.pdf

Joseph Kimble has long been recognized as one of the top legal writing scholars. In this Plain English column of the Michigan Bar Journal (every Bar Journal should have one!), Professor Kimble offers evidence once again that readers, including judges, prefer plain language and why. -CCE

To help round out this plain-English theme issue of the Bar Journal, I offer the evidence of four studies. These four are among 50 that I collect and summarize in my book Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. Of the 50 studies, 18 involved different kinds of legal documents—lawsuit papers, judicial opinions, statutes, regulations, jury instructions, court forms and notices, and contracts. And they included readers of all sorts—judges, lawyers, administrators, and the general  public. The evidence is overwhelming: readers strongly prefer plain language to legalese, understand it better and faster, are more likely to comply with it, and are more likely to read it to begin with. —JK

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Legal Writing – Why Shorter is Better.

08 Thursday Dec 2016

Posted by Celia C. Elwell, RP in Editing, Legal Writing, Legalese, Readability

≈ Comments Off on Legal Writing – Why Shorter is Better.

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Editing, Good Legal Writing Blog, Legal Writing, Rule of Short, Tiffany Johnson

Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog

https://goodlegalwriting.com/2011/02/11/make-it-shorter-and-shorter/

Regardless of whether, in your own opinion, you are a good writer, we can always improve. Here is an opportunity to polish your skills, take note of some bad habits, and hone your editing technique. -CCE

Here’s a good exercise to promote plain writing and dense writing.  The object is to force you to purge your writing of any words that don’t work their butts off on your behalf.  Take the following sentence and reduce it to as few words as humanly possible, without changing the meaning of the sentence.  Shortest re-write wins a prize (respect)!

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The Plain Language Argument Against Using Latin Legal Terms of Art.

30 Sunday Oct 2016

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Writing, Legalese, Plain Language, Terms of art

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Chadwick C. Busk, Latin, Legal Terms of Art, Legal Writing, Michael Braem, Michigan Bar Journal, Plain Language

Curiouser and Curiouser Excuses for Legal Jargon, by Chadwick C. Busk & Michael Braem, 95 Plain Language, Mich. B.J. 30 (2016)

Click to access pdf4article2967.pdf

Earlier today, I posted about the use of Latin for legal terms of art, although legal writing scholars usually advise against using them. This article addresses that very subject. -CCE

I don’t know the meaning of half those long words, and I don’t believe you  do either.” —Eaglet, Alice in Wonderland (1865), Chapter III

“Some lawyers and academicians attempt to justify legal jargon and “traditional” legal writing—legal writing that’s ‘wordy, unclear, pompous, dull1’  and even “wretched.’2 But legal jargon in contracts burdens all those who must deal with it: the parties to the agreement who try to understand it, lawyers who mistakenly think they must use it, and judges who have to interpret it. Legal jargon often creates ambiguity, and ambiguity invites litigation. Many legalisms have been fodder for courts to puzzle over, including herein, therein, hereby, and thereof; shall; and/or; and best efforts.

However, some academicians, most recently Professor Lori Johnson of the UNLV William S. Boyd School of Law, have modernized old excuses for legal jargon and concocted new ones. Can these arguments withstand a reasoned analysis, or are they merely fanciful declarations from Wonderland?

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Another “How To” Really, Really Write Bad Briefs.

24 Monday Oct 2016

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Legal Writing, Legalese, Plain Language

≈ Comments Off on Another “How To” Really, Really Write Bad Briefs.

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Brief Writing, Legal Writing, Michigan Bar Journal, Plain English Committee

How to Ruin Your Briefs – Or The Screwtape Lawyers, by Austin J. Hakes, 50 Mich. B. J. (Aug. 2016)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2928.pdf

The author has a well-known new client with an unusual request – write the worst briefs possible. The author offers eight rules to as guidelines to fulfill his client’s wish. This will be interesting! And, because it comes from the Michigan Bar Journal’s Plain English Committee, you know it’s going to be good. -CCE

That’s right— he wants us to write terrible briefs. This surprised me too at first, but then he explained his new litigation strategy: suspecting that it might be more effective to ruin judicial minds than to manipulate them in his favor, he wants to use terrible writing to drive appellate judges totally insane. Writing a bad brief is easy enough, but writing a truly disastrous one—one capable of inducing madness—is a task requiring deliberate effort and careful study. Our greatest challenge may be a lack of helpful reference materials, for although there are several good books on the art of writing well, the craft of writing badly has been suppressed and maligned for far too long. In the hope of invigorating the persecuted art of infuriating prose, I offer this letter. It’s a meager beginning, but if you follow these eight rules to the best of your ability, your writing should be sufficiently misguided and maddening to serve our client well.

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What’s It Like In Your Judge’s Shoes?

03 Friday Jun 2016

Posted by Celia C. Elwell, RP in Brief Writing, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Readability

≈ Comments Off on What’s It Like In Your Judge’s Shoes?

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Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., Persuasive Writing, Sherri Lee Keene

Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/06/advice-on-writing-to-persuade-the-court.html

In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.

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Russ Guberman’s Six Editing Tips.

22 Sunday May 2016

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language

≈ Comments Off on Russ Guberman’s Six Editing Tips.

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Legal Writing, Legalese, Russ Guberman

No Thanks: Six More Words and Phrases to Avoid, by Russ Guberman

http://legalwritingpro.com/blog/no-thanks-six-more-words-and-phrases-to-avoid/#comment-91

Small wording changes can liven up your style by speeding up and punching up your prose.

Let’s match wits with some of the world’s best judicial writers below. Or is that ‘with certain of the world’s most illustrious judicial draftspersons infra’?

The Rules of Engagement: If a word or phrase is bolded in the first part of each set, the big guns didn’t write it. For each of those bolded terms, think of a lighter or shorter replacement before you peek below.

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Just Really Good Legal Writing.

21 Saturday May 2016

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Grammar, Legal Writing, Legalese, Persuasive Writing, Punctuation, Readability

≈ Comments Off on Just Really Good Legal Writing.

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Eugene Volokh, Grammar, J. Alexander Tanford, Legal Writing, Maurer School of Law, Punctuation

How To Write Good Legal Stuff, by Eugene Volokh and J. Alexander Tanford, Maurer School of Law© 2001, 2009

http://law.indiana.edu/instruction/tanford/web/reference/how2writegood.pdf

This is a guide to good legal writing. Good writing consists of avoiding common clunkers and using simpler replacements. The replacements aren’t always perfect synonyms but 90% of the time they’re better than the original. Warning: Some changes also require grammatical twiddling of other parts of the sentence. This is not a guide to proper high English usage. We don’t give two hoots whether you dangle participles, split infinitives or end sentences with prepositions. We care that you can write clearly.

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Another Legal Writing Honey Pot

08 Sunday May 2016

Posted by Celia C. Elwell, RP in Appellate Writing, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language

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Bryan A. Garner, Legal Writing, The Scribes Journal of Legal Writing, U.S. Supreme Court Justices

Transcripts of Bryan Garner’s Transcripts With Supreme Court Justices On Legal Writing And Advocacy, THE SCRIBES JOURNAL OF LEGAL WRITING©

http://legaltimes.typepad.com/files/garner-transcripts-1.pdf

If you had to pick just one edition of The Scribes Journal of Legal Writing, which would be an incredibly hard thing to do, this is certainly one I would strongly recommend. Bryan Garner’s interviews with Supreme Court Justices on legal writing! Does it get any better than this? If you are a legal writing aficionado, or even if you’re not, you’ll appreciate the wisdom here. -CCE  

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Does Legalese Have A Legitimate Purpose?

13 Saturday Feb 2016

Posted by Celia C. Elwell, RP in Legal Writing, Legalese, Persuasive Writing, Plain Language, Readability

≈ Comments Off on Does Legalese Have A Legitimate Purpose?

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Brendan Kenny, Lawyerist Blog, Legal Terms of Art, Legal Writing, Legalese

Lawyers, Stop Writing (and Saying) These Things Immediately, by Brendan Kenny, Lawyerist Blog© 2007–2016

http://bit.ly/1PJPILK

Many lawyers are tired of hearing about legalese, and many still haven’t embraced plain language in their own legal writing and speaking. This post won’t try to change their minds. If Bryan Garner’s life work can’t convince lawyers, how can I?

But there is another issue often lost in the plain-language wars: where did all these legalese words come from? The perception on both sides seems to be these words and phrases once served a purpose, but don’t anymore. But what if we discovered that they never served any purpose? . . . .

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The Effort to Make and Keep Patents Correct and Clear.

08 Sunday Nov 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Intellectual Property, Legal Writing, Legalese, Patent Law, Plain Language, Readability

≈ Comments Off on The Effort to Make and Keep Patents Correct and Clear.

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Dennis Crouch, Intellectual Property, Michelle K. Lee, PatentlyO Blog, Patents, Plain Language, US Patent and Trademark Office

Director Michelle Lee: Moving toward Patent Clarity, posted by Dennis Crouch, PatentlyO Blog

http://tinyurl.com/q4dvog7

The following is a post from Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee and was published on the PTO Director’s blog.

Patent quality is central to fulfilling a core mission of the USPTO, which as stated in the Constitution, is to ‘promote the Progress of Science and useful Arts.’ It is critically important that the USPTO issue patents that are both correct and clear. Historically, our primary focus has been on correctness, but the evolving patent landscape has challenged us to increase our focus on clarity.

Patents of the highest quality can help to stimulate and promote efficient licensing, research and development, and future innovation without resorting to needless high-cost court proceedings. Through correctness and clarity, such patents better enable potential users of patented technologies to make informed decisions on how to avoid infringement, whether to seek a license, and/or when to settle or litigate a patent dispute. Patent owners also benefit from having clear notice on the boundaries of their patent rights. After and after successfully reducing the backlog of unexamined patent applications, our agency is redoubling its focus on quality.

We asked for your help on how we can best improve quality—and you responded.

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The Worst Legal Writing Ever?

19 Monday Oct 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Writing, Legalese

≈ Comments Off on The Worst Legal Writing Ever?

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Lawyerist Blog, Legal Writing, Legalese, Lisa Needham, Sam Glover, Sam Hardin

We Created the Worst Piece of Legal Writing Possible, by Sam Glover, Lisa Needham, and Sam Harden, Lawyerist Blog (with hat tip to Raymond Ward!)

https://lawyerist.com/91373/we-created-the-worst-piece-of-legal-writing-possible/#disqus_thread

I have to admit that it’s a good effort at legalese, but is it the worst legal writing you have ever read? Does it deserve a place in the Legal Writing Hall of Shame? You be the judge! -CCE

Legalese is awful. To prove it, we forced three lawyers (Sam Glover, Lisa Needham, and Sam Harden) to combine their skills to write the worst piece of legal writing imaginable. Here’s what they came up with:

Clarity in Legal Writing: Unattainable Goal or Necessary Component of Effective Advocacy?

The issue of clearness and conciseness in writing and preparing legal documents, e.g. court filings, pleadings, and motions and all other possible legal and ancillary documents is often a topic of discussion among judges and legal scholars. . . .

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Plain Language Examples – Before and After.

16 Friday Oct 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Grammar, Legal Writing, Legalese, Plain Language, Proofreading, Punctuation, Readability

≈ Comments Off on Plain Language Examples – Before and After.

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Editing, Grammar & Punctuation, Legal Writing, Plain Language, Readability

Before-and-After Comparisons, PlainLanguge.gov

http://www.plainlanguage.gov/examples/before_after/index.cfm

There are a number of superior – and free – websites available to anyone who wants to improve his legal writing skills. PlainLaguage.gov is one of them.

I doubt that anyone wants to write poorly. Often, just showing before-and-after examples improve writing skills. One of the most efficient ways I have found when teaching legal writing is to take a bad writing example, identify why it is ineffective or just plain silly, and suggest different ways to fix it.

Here are examples of government regulations, manuals, handbooks, reports, and other publications that show “before and after” examples that use plain language to improve a sentence, paragraph, or document. -CCE

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Plain Language Honey Pot.

08 Wednesday Jul 2015

Posted by Celia C. Elwell, RP in Brief Writing, Editing, Fonts, Jury Instructions, Legal Writing, Legalese, Precedent, Readability

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Judge Mark P. Painter, Legal Writing, Plain Language, PlainLanguage.gov

Legal Examples, PlainLanguage.gov

http://www.plainlanguage.gov/examples/legal/

I have noticed that posts here on legal writing, legalese, and plain language are always popular. Here is a treat for you plain language lovers – a mixed bag of excellent plain language examples of legal writing. They include Pennsylvania’s statute requiring plain language for contracts, California’s plain language jury instructions, Martin Cutt’s classic, Lucid Law, and my personal favorites – two fantastic articles by Judge Mark P. Painter.

Once you click on this link and go to the website, you will see buttons that will take you to other plain language examples, resources, and tips. Enjoy! -CCE

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Pleading Code In Poetry.

18 Saturday Apr 2015

Posted by Celia C. Elwell, RP in Civil Procedure, Federal Civil Procedure, Legal Writing, Legalese, Plain Language, Pleadings

≈ Comments Off on Pleading Code In Poetry.

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Edgar Allen Poe, Legalese, Mark Cooney, Michigan Bar Journal, Plain English, Plain English Subcommittee, Pleading Code, Pleadings

The Pleading, by Mark Cooney, Plain Language, 94 Mich. B.J. 3, 42 (March 2015)

Click to access pdf4article2583.pdf

Another article from the Plain English Subcommittee of the Michigan Bar Journal. As always, each article makes a case for using plain English in legal writing. This group has been, and remains, a strong proponent for elegant legal writing without legalese.

This selection is a clever take off Edgar Allen Poe’s poem, The Raven, that cautions the reader against writing pleadings with stuffy, archaic language. Its author, editor in chief of The Scribes Journal of Legal Writing and author of Sketches on Legal Style, Mark Cooney, is a legal writing professor at Western Michigan University Cooley Law School. -CCE

Once upon a docket dreary, as I pondered
after hearings,
Over many a curious case then pending
with the busy court,
While I read, attention sapping, suddenly
there came a tapping,
As of someone gently rapping, rapping at
my chambers door.
‘Tis my clerk again,’ I grumbled, ‘tapping
on my chambers door—
Oh, yet another matter more.’

Pausing just a moment further, bracing
for the fresh-faced fervor,
Up I turned my heavy head to bid my
clerk in through the door.
In he stepped with youthful stride,
brand-new filing at his side,
Still another motion coming briskly
through my chambers door—
A docket full and motions more, another
through my chambers door—
Coming through my chambers door. . . .

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The Art of Well Written Judicial Opinions.

17 Friday Apr 2015

Posted by Celia C. Elwell, RP in Judges, Legal Analysis, Legal Writing, Legalese, Plain Language, Readability

≈ Comments Off on The Art of Well Written Judicial Opinions.

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Judicial Opinions, Legal Analysis, Legal Writing, Legal Writing Pro Blog, Legalese, Ross Guberman, Trial Judges

The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman, Legal Writing Pro Blog

http://legalwritingpro.com/blog/the-seven-writing-strategies-of-highly-effective-trial-judges/

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a ‘great’ opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a ‘great’ opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say ‘yes’ on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be ‘great’ for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . .

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Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.

24 Tuesday Mar 2015

Posted by Celia C. Elwell, RP in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Legalese, Plain Language, Readability, Trial Tips and Techniques

≈ Comments Off on Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.

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Dr. Ken Broda-Bahm, Jury instructions, Persuasive Litigator, Plain English, Trial Tips & Techniques

Embrace Plain English Jury Instructions, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2015/03/embrace-plain-english-instructions-and-plain-english-persuasion.html

I often play the role of the ‘judge’ during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about ‘preponderance,’ and ‘proximate cause,’ and making the plaintiff ‘whole,’ I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, ‘Look, my point is not for you to understand this… it is just to be realistic.’ And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. ’Jury instructions are written by lawyers,’ the American Judicature Society points out, ‘and are often filled with legal language whose meaning is not apparent to those without legal training.’ . . .

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Legislative Drafting And Plain English – They Are Not Mutually Exclusive.

22 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Argument, Legal Writing, Legalese, Plain Language, Punctuation, Readability

≈ Comments Off on Legislative Drafting And Plain English – They Are Not Mutually Exclusive.

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Judge Mark P. Painter, Judging Strictly By Merit, Legal Writing, Legalese, Plain English

A Classic Example Of Bad Writing, by Judge Mark P. Painter, Judging Strictly By Merit

http://www.judgepainter.org/legalwriter55

In my last column I gave kudos to the U.S. Supreme Court and its rules committee for rewriting the Federal Rules of Civil Procedure in plain language. But the fight goes on. Legislative drafting continues to be particularly egregious. . . .

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We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.

04 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Legal Writing, Legalese, Plain Language

≈ Comments Off on We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.

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Christopher Trudeau, Legal Skills Prof Blog, Legal Writing, Legalese, Louis J. Sirico Jr., Plain English, The Scribes Journal of Legal Writing

Does Plain English Make a Difference to Clients?, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/mgf49tn

According to an empirical study by Christopher Trudeau, the answer is yes. I think his 2012 article deserves greater attention–The Public Speaks: An Empirical Study of Legal Communication, 14 The Scribes Journal of Legal Writing 121 (2012) (here).

In a carefully designed study, subjects compared passages written in plain English and similar passages that contained the failures that plain English attempts to eliminate. The study provides a good bit of valuable information. It also results in 10 practical pointers.

First, do not underestimate the importance of oral communication. Over half of all respondents preferred some type of oral communication to written communication.

Second, deliver written documents electronically even when you must send a hard copy.

Third, use clear, understandable written communication.

Fourth, do not assume that all readers will understand commonly used legal terms. Instead, define these terms if you must use them.

Fifth, avoid complicated terms and Latin words. They generally bothered or annoyed nearly seven out of ten clients.

Sixth, prefer the active voice. Respondents preferred it almost 70% of the time — and clients at a higher rate than non-clients.

Seventh, avoid multi-word prepositions like pursuant to and prior to and with regard to. They are among the worst aspects of legalese.

Eighth, remember that the more confusing the sentences become, the more likely that a reader will prefer plain language.

Ninth — and this needs to be proclaimed repeatedly, ceaselessly— the vast majority of clients and non-clients prefer plain language. For the choice-of-language questions, readers chose the plain-language version 80% of the time.

Finally, use plain language no matter what the reader’s educational level. Contrary to my original theory, as the level increased, so did the respondent’s preference for plain language.

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Ken Adams Shares What It Takes To Be A Great Contract Writer.

02 Monday Mar 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Boilerplate Forms, Contract Law, Editing, Legal Writing, Legalese, Readability, Style Manuals

≈ Comments Off on Ken Adams Shares What It Takes To Be A Great Contract Writer.

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Adams on Contract Drafting, Contracts, Ken Adams, Legal Drafting, Style Manuals

What It Takes to Be a Great Contract Drafter, by Ken Adams, Adams On Contract Drafting

http://www.adamsdrafting.com/what-it-takes-to-be-a-great-contract-drafter/

If you write or work with contracts, this is a “must read” post by Ken Adams. Drafting a good contract is a special type of legal writing. A good, solid contract is a work of art. Also, please don’t ignore the Comments at the end of the post. There’s more good information there as well. -CCE

Here’s what it takes to be a great contract drafter:

Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.

Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.

Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science. . . .

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No Question About It – Bad Legal Writing Squanders Your Money.

01 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Economics, Law Office Management, Legal Writing, Legalese, Management, Plain Language, Readability, Time Management

≈ Comments Off on No Question About It – Bad Legal Writing Squanders Your Money.

Tags

Bad Legal Writing, Findlaw, Law Firm Economics, Matthew Salzwedel, Plain English, The Lawyerist Blog

Face It — Bad Legal Writing Wastes Money, by Matthew Salzwedel, The Lawyerist Blog

https://lawyerist.com/60599/face-it-bad-legal-writing-wastes-money/

A recent article on FindLaw.com called Five Ways Attorneys Waste Money claimed that attorneys can cut clients’ costs by avoiding needless motions, staffing cases leanly, focusing on the important issues, avoiding petty spats with the opposition, and being smart about when to settle.

But the article ignored the most important way attorneys can save money for their firms and clients: by learning how to write in plain English.

Most attorneys don’t believe that writing style matters. They might concede that writing in plain English can be aesthetically pleasing to the reader; but they also say that it’s not worth the time to learn how to do it because there’s no evidence that writing in plain English saves time or money.

But these attorneys ignore what legal-writing experts have taught — and what the empirical evidence has shown — for more than 50 years: that plain English saves time and money by increasing the ability of readers to understand and retain what they have read. . . .

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“Know All Men By These Presents” — Who’s Getting All The Gifts?

17 Tuesday Feb 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Boilerplate Forms, Boilerplate Forms, Contract Law, Legal Writing, Legalese

≈ Comments Off on “Know All Men By These Presents” — Who’s Getting All The Gifts?

Tags

Ken Adams, Legal Writing, Legalese, Raymond Ward, the (new) legal writer blog

Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog

http://raymondpward.typepad.com/newlegalwriter/2012/01/presents-thank-you-very-oh.html

Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.

Can I get a witnesseth?

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Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Discovery, Editing, Interrogatories, Legal Writing, Legalese, Plain Language, Readability, Requests for Admissions, Requests for Production

≈ Comments Off on Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

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Discovery, Discovery Disputes, Discovery Responses, Legal Writing, Oklahoma Bar Journal, U.S. Magistrate Paul J. Cleary

Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)

http://tinyurl.com/mjfawqa

Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma.  He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. 

It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE

“What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967).

There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.

The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .

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Rewrite Legalese – This Is How You Do It.

15 Thursday Jan 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language, Readability

≈ Comments Off on Rewrite Legalese – This Is How You Do It.

Tags

Joseph Kimble, Legal Skills Prof Blog, Legalese, Louis J. Sirico Jr., Plain English, Plain English Movement, William P. Statsky

Examples: Translating Legalese into Plain English, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills Prof Blog (with hat tip to William P. Statsky!)

http://lawprofessors.typepad.com/legal_skills/2015/01/examples-translating-legalese-into-plain-english.html

Having problems rewriting legalese into understandable plain English? Use these excellent examples from Joseph Kimble, one of the legal writing giants, posted by another great legal writing expert, Louis J. Sirico, Jr. – CCE

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Top Posts for 2014.

01 Thursday Jan 2015

Posted by Celia C. Elwell, RP in ALWD, Android Phones, Citations, File Naming Conventions, Law Office Management, Legal Ethics, Legal Technology, Legal Writing, Legalese, Microsoft Office, Office Procedures, Outlook, Readability, The Bluebook

≈ Comments Off on Top Posts for 2014.

Tags

Android Phones, Legal Citation Format, Legal Ethics, Legal Writing, Legalese, Microsoft Outlook, Top Posts for 2014

Here they are – the posts ranked highest during 2014, the first full year for this blog. Posted in order of popularity, it is an interesting mix. Many thanks for stopping by. -CCE

Android Users – Good Advice And Alternative Options For Google Calendar Sync.

https://researchingparalegal.com/2014/07/09/android-users-good-advice-and-alternative-options-for-google-calendar-sync/

Peter Martin’s Introduction to Basic Legal Citation — An ALWD and Bluebook Cheat Sheet.

https://researchingparalegal.com/2013/10/31/peter-martins-introduction-to-basic-legal-citation-an-alwd-and-bluebook-cheat-sheet/

Legal Ethics Head’s Up – Don’t Get Drunk, Move A Dead Body, And Lie To Police.

https://researchingparalegal.com/2014/02/10/legal-ethics-heads-up-dont-get-drunk-move-a-dead-body-and-lie-to-police/

What The Heck Does “SS” In An Affidavit Mean Anyway?

https://researchingparalegal.com/2014/05/25/what-the-heck-does-ss-in-an-affidavit-mean-anyway/

Plain English Tools include Gobbledygook Generator.

https://researchingparalegal.com/2013/11/20/plain-english-tools-include-gobbledygook-generator/

Please Use Electronic File Naming Conventions!

https://researchingparalegal.com/2014/03/29/please-use-electronic-file-naming-conventions/

Sayeth or Saith? Actually, It’s Neither.

 https://researchingparalegal.com/2014/02/22/sayeth-or-saith-actually-its-neither/

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