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Tag Archives: Legalese

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

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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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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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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 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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Premises Considered – Legalese Or The Way It Should Be Done?

04 Saturday Jul 2015

Posted by Celia C. Elwell, RP in Legal Argument, Plain Language, Readability

≈ Comments Off on Premises Considered – Legalese Or The Way It Should Be Done?

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Legal Writing Net Blog, Legalese, Premises Considered, Wayne Scheiss

Wherefore Premises Considered? by Wayne Scheiss, Legal Writing Net Blog

http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005/03/wherefore-premises-considered

 

When I worked as a legal secretary, I typed the archaic phrase “premises considered” so many times in pleadings, orders, brief, and all types of legal documents. No one ever explained what it meant, but the author was certainly upset if it was omitted. The reason for insisting that this phrase be added? It made the document sound more legal.

They were so used to seeing this phrase, although they did not know its meaning, that it simply did not look right without it. This is reason given by most followers of legalese. They cannot explain what it means – it just looks wrong without it. Is that really a sufficient reason to include it? -CCE

Is it okay to eliminate phrases like WHEREFORE PREMISES CONSIDERED and other such verbiage from the prayer in a complaint? And what is the proper substitute?

Yes, it is okay to eliminate these words. In fact, I highly recommend it. . . .

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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

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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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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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“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?

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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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Another Kimble Legal Writing Example – This Is How You Do It.

29 Thursday Jan 2015

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

≈ Comments Off on Another Kimble Legal Writing Example – This Is How You Do It.

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Joseph Kimble, Judith D. Fischer, Legal Writing, Legal Writing Prof Blog, Legalese, The Green Bag

Lawyers Are Poor Drafters, by Judith D. Fischer, Legal Writing Prof Blog

http://lawprofessors.typepad.com/legalwriting/2015/01/lawyers-are-poor-drafters.html

Most lawyers are poor drafters, writes Professor Joseph Kimble of Western Michigan University-Cooley Law School. In a recent article, Kimble identifies two key reasons for this: law schools have tended to neglect legal drafting, and lawyers often mimic the antiquated language in form books and poorly drafted statutes. To illustrate the problem, Kimble offers a court order prepared by lawyers and judges at a recent symposium. Displaying the order and his revised version side by side, he points out, among other things, that the original has 125 words more than the revision; the original includes several legalese phrases, such as pursuant to; and the original includes unnecessary cross-references. For his full analysis, see You Think Lawyers Are Good Drafters? in the autumn 2014 issue of The Green Bag.

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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.

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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.

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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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Whatever Can Be Misunderstood, Will Be.

15 Saturday Nov 2014

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

≈ Comments Off on Whatever Can Be Misunderstood, Will Be.

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Albert Einstein, Legal Writing, Legalese, Paul Luvera, Plain Language, Plaintiff Trial Lawyer Tips Blog

This Should Be Every Trial Lawyer’s Mantra, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://tinyurl.com/myfv5oo

One of my favorite quotations! Mr. Luvera hit the nail on the head, not only for trial presentations, but for any type of writing regardless of your profession. Some people think that their writing should be complex, with lots of Latin, jargon, and legalese. Technical writers often use complicated terms and words understood (barely) by people who work in their industry, but no one else.

Most readers skim or skip the long, single-space block quotations often found in legal briefs. Wouldn’t you? Imagine having to slog through poorly written briefs day after day? Or imagine that you are a juror who must decipher poorly written jury instructions. If what you say is that important, why risk losing the reader even for a moment?

Just like Murphy’s Law, in writing, whatever can be misunderstood, will be. What is the point of writing anything if you are not easily understood? No, you are not “dumbing down” your writing or treating the reader like a child. You are communicating and facilitating your goal — to be understood. -CCE

enstein

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Collection of Judges’ Best Advice On Legal Writing.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, 5th Circuit Court of Appeals, Appellate Law, Appellate Writing, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Editing, Legal Argument, Legal Writing, Legalese, Oregon Supreme Court, Plain Language, Readability, Texas Supreme Court, United States Supreme Court, Wisconsin Supreme Court

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Appellate Brief Writing, Bryan A. Garner, Joseph Kimble, Legal Writing, Legalese, Michigan Bar Association, Plain Language

Judges on Effective Writing: The Importance of Plain Language, by Bryan A. Garner, Vol 84 Mich. B. J. 44 (February 2005)

http://tinyurl.com/kk6trum

Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE

I trust that, after more than 20 years, some of the Plain Language columns are worth reprinting. This one appeared in March 1994. As I noted then, the survey that Mr. Garner mentions in his introduction is the same one that we first did in Michigan, with very similar results. See the October 1987 and May 1990 columns. The judges are identified by their judicial positions when they make their remarks. —JK (Joseph Kimble)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all.

The results of that survey surprised many Texas litigators—and many changed the form of their court papers. But many more have persisted in the old, legalistic style—perhaps out of a fondness akin to what some people feel for the language of the King James Version of the Bible. Judge Lynn Hughes of Houston speaks directly to those litigators: ‘Anyone who thinks Comes now the Plaintiff is anything like the King James Version has no sense of poetry.’

Literary tastes may differ, of course, but it’s worth knowing what judges say—and have been saying for a long time—about the language we lawyers use. Following are some choice quotations I’ve recently collected. —Bryan A. Garner

Judicial Diagnoses

‘Lawyers spend a great deal of their time shoveling smoke.’ Hon. Oliver Wendell Holmes1, U.S. Supreme Court

‘[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.’ Hon. Antonin Scalia2 , U.S. Supreme Court

‘The reason legal writing has gotten to such a low point is that we have had very bad teachers—judges who wrote years ago and wrote badly. We learned bad habits from them and their opinions in law school.’
Hon. William Bablitch3, Supreme Court of Wisconsin

Stick to the Mother Tongue

‘[The advocate] will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like a spear and the simple figure that lights the understanding. He will never drive the judge to his dictionary. He will rejoice in the strength of the mother tongue as found in the King James version of the Bible, and in the power of the terse and flashing phrase of a Kipling or a Churchill.’  Hon. Robert H. Jackson4, U.S. Supreme Court

‘[A]void as much as possible stilted legal language, the thereins, thereofs, whereinbefores, hereinafters, and what-have-yous. Use English wherever you can to express the idea as well and as concisely as in law or Latin. A healthy respect for the robust Anglo-Saxon appeals more than does the Latin, whether or not it is Anglicized. The home-grown product in this case is better than the imported, not to say smuggled, one.’ Hon. Wiley B. Rutledge5, U.S. Supreme Court

‘Write so that you’re understood. English is a hard language to learn, but it’s an easy language to communicate in. There’s no reason to put Latin in your brief.’ Hon. Craig T. Enoch6, Fifth Court of Appeals, Dallas

‘Don’t use legalese. It causes you to put your contentions in stale ways.’ Hon. Thomas Gibbs Gee7, U.S. Court of Appeals for the Fifth Circuit, 1974-91

‘Legalese is an impediment to clear, logical thinking.’ Hon. F. Lee Duggan8, First Court of Appeals, Houston

‘It’s easier for a judge when you’re using common usage. Judges are only human, after all.’ Hon. Carolyn Wright9, Family District Court, Dallas

Simplify, Simplify!

‘For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.’ Hon. Lynn N. Hughes10. U.S. District Court, Houston

‘A lawyer should write the brief at a level a 12th grader could understand. That’s a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court.’ Hon. William Bablitch11, Supreme Court of Wisconsin

‘When a judge finds a brief which sets up from twelve to twenty or thirty issues or ‘points’ or ‘assignments of error,’ he begins to look for the two or three, perhaps the one, of controlling force. Somebody has got lost in the underbrush and the judge has to get him—or the other fellow—out. That kind of brief may be labeled the ‘obfuscating’ type. It is distinctly not the kind to use if the attorney wishes calm, temperate, dispassionate reason to emanate from the cloister. I strongly advise against use of this type of brief, consciously or unconsciously. Though this fault has been called over-analysis, it is really a type of under-analysis.’ Hon. Wiley B. Rutledge12, U.S. Supreme Court

‘The key is to make the brief easy for the judge to follow.’ Hon. Lloyd Doggett13, Supreme Court of Texas

Cut the Verbiage

‘You want your brief to be as readable as possible . . . . If I pick up a brief of 49 and a half pages, it has a little less credibility than one that succinctly argues its points in 25 pages . . . . There’s nothing better to read than a well-written brief from a really good lawyer.’ Hon. Jerry E. Smith14, U.S. Court of Appeals for the Fifth Circuit

‘Eye fatigue and irritability set in well before page 50.’ Hon. Patricia M. Wald15, U.S. Court of Appeals for the D.C. Circuit

‘A brief should manifest conviction . . . . [That] is virtually impossible . . . if it contains an excessive number of quotations or is larded with numerous citations to the authorities. Short quotations sometimes clinch a point, but long ones fail in that objective.’ Hon. George Rossman16. Supreme Court of Oregon

‘Start in the very first sentence with the problem in this case. Put it right up front. Start early. Don’t bury it under a lot of verbiage and preliminaries.’ Hon. Nathan L. Hecht17, Supreme Court of Texas

Does Style Matter?

‘Style must be regarded as one of the principal tools of the judiciary and it thus deserves detailed attention and repeated emphasis.’ Hon. Griffin B. Bell18, U.S. Court of Appeals for the Fifth Circuit

‘Lawyers are excused from the necessity of interesting their readers, and all too often—let’s face the evidence—they take advantage of this enviable exemption.’ Hon. Jerome Frank19, U.S. Court of Appeals for the Second Circuit

‘Is good writing rewarded? I used to think it doesn’t matter much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.’ Hon. Murry Cohen20, Fourteenth Court of Appeals, Houston

Bryan A. Garner (bagarner@att.net), president of Dallas-based LawProse, Inc. (www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary. He teaches at Southern Methodist University School of Law.

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Does The Law Really Require Legalese?

16 Thursday Oct 2014

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

≈ Comments Off on Does The Law Really Require Legalese?

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Joseph Kimble, Legal Writing, Legal Writing Editor Blog, Legalese, Plain Language

You Think the Law Requires Legalese?, by Joseph Kimble, Legal Writing Editor Blog

http://legalwritingeditor.com/2013/10/21/think-law-requires-legalese/

A classic. -CCE

There’s a sign that, in some configuration, appears on every gas pump in Michigan, although most drivers probably don’t even notice it anymore. You can see one in the photo to the right.

Let’s put aside the all-capitals, which are notoriously hard to read. And never mind that the first and second items aren’t exactly parallel. (‘Stop engine. Don’t smoke.’) The trouble — linguistically, stylistically, semantically — shows up in the third item.

Look at that little sentence. We get an explicit subject, A person, which really throws off the parallelism. The lawyer’s shall — now corrupted and ambiguous from misuse — does not belong even in statutes or regulations, let alone on a gas pump. Remain in attendance? Oh, please. The first of is unnecessary. And for the big comedic finish, we’re seemingly told that the nozzle must be able to see the person.

The fix isn’t hard: ‘You must stay outside your vehicle and be able to see the nozzle.’ Or for parallelism with the first two items: ‘Stay outside your vehicle, and make sure you can see the nozzle.’

Now, are people likely to misunderstand the pump version? No. Is this the worst public writing on the planet? Obviously not. But by tracing this mundane example to its source, anyone who cares about clarity in legal and official documents can learn a set of critical lessons. . . .

 

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“Comes Now” — The Most Common Legalese Words Ever?

30 Saturday Aug 2014

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

≈ Comments Off on “Comes Now” — The Most Common Legalese Words Ever?

Tags

Comes Now, Legalese, Michael M. Simpson, The Grammar Snob Blog

Comes Now?, by Michael M. Simpson, The Grammar Snob Blog

http://grammar-ttlms.blogspot.com/2007/07/comes-now.html

“Comes Now” is probably one of the most common legalese phrases, and often used in pleadings, motions, briefs — almost any legal document except contracts. (If Comes Now shows up often in contracts, please don’t tell me. Let me keep some of my happy place illusions.) If you have a legalese phrase used more frequently than “Comes Now,” please share!

As I have said before, there is no statute, case law, regulation, constitution, or any other legal requirement to use legalese. I’ve looked. If you disagree, please point me to that legal authority. I have been looking for it a long time. I’ve been told by a lawyer that they use it because it just sounds “more legal.” Judge for yourself. -CCE

As always, because I have a real job I don’t get to post to my blog as much as I like. I’ve been editing a post on dangling modifiers, since there are only 52,138 other internet pages explaining why dangling modifiers are bad, but I haven’t finished mine, which will be the pinnacle of dangling modifier criticism, I suppose. (Again, for those of you who haven’t the foggiest idea what a dangling modifier is, surely there’s a NASCAR race stored in your Tivo ready to watch.) Instead, I’ve got a blog for my fellow attorneys, many of whom file pleadings in court containing the phrase ‘Comes now.’ As in:

‘Comes now Plaintiff, John Doe, and complains of Defendant, David Evildoer, and pray the Court grant him judgment, and for cause of action would show the following.’

A question. You’re sitting on your favorite barstool at the local watering hole, taking the edge off a rough day in the salt mine with your favorite poison (for me, a tall draft of Harp or Warsteiner, or on a Friday, a shot of Maker’s Mark with a sidecar of ice) and your best friend walks in to join you. Do you exclaim ‘Comes now Drew, and sits next to mine self to drink beer’? Okay, if you answered this question ‘yes,’ an exciting career in writing boring pleadings awaits you. If you answered ‘no,’ then I understand why you hate legalese. . . .

 

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10 Top Law-Related TED Videos.

20 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Computer Forensics, Computer Fraud and Abuse Act, Computer Virus, Copyright, Criminal Law, Cybersecurity, Digital Millenium Copyright Act, Discovery, Encryption, Evidence, Finance and Banking Law, Fraud, Google, Government, Identity Theft, Intellectual Property, Law Office Management, Legal Technology, Legal Writing, Legalese, Malware, Management, Patent Law, PC Computers, Plain Language, Presentations, Search Engines, Trial Tips and Techniques, Trojans, Video

≈ Comments Off on 10 Top Law-Related TED Videos.

Tags

Copyright, Crime, Eyewitness, Fashion Industry, Government, Internet, Legal Productivity Blog, Legalese, Patent Troll, Plain Language, TED, Tim Baran

Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog

http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/

Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages.  Think of it as a massive brain trust that shares great ideas and information.

Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE

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George Orwell’s “Politics and the English Language”

01 Tuesday Jul 2014

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

≈ Comments Off on George Orwell’s “Politics and the English Language”

Tags

Bad Legal Writing, Editing, George Orwell, Grammar and Punctuation, Legal Writing, Legalese, Plain Language, Politics and the English Language, Proofreading

Politics and the English Language, George Orwell’s Library

http://tinyurl.com/nsagx

Orwell’s 1946 essay, “Politics and the English Language” is a classic. Mr. Orwell actually had six, not five, excellent rules for effective writing. Follow these rules, and you cannot go wrong. -CCE

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than saying anything outright barbarous.

 

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Do You Write Like A Tool? Here’s One Way To Find Out.

04 Wednesday Jun 2014

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

≈ Comments Off on Do You Write Like A Tool? Here’s One Way To Find Out.

Tags

Above the Law (blog), Bad Legal Writing, Jay Shepherd, Legal Writing, Legalese

Small Firms, Big Lawyers: 20 Ways to Write Like a Tool, by Jay Shepherd, Above The Law Blog

http://tinyurl.com/6zxgxy8

Ever see Fight Club? Yeah, me neither. The 1999 Brad Pitt movie was more of a cult film than a commercial success, although it did make back its costs. But the movie did have a line that became something of a meme, and was once recognized by Premiere magazine as the 27th greatest line in movie history (which seems dubious, but whatever):

The first rule of Fight Club is you do not talk about Fight Club.

If only lawyers had the same rule.

You see, being a lawyer is like being a member of an elite club. OK, maybe not as elite as we like to think; there are more than a million members in the US. But elite enough. And the problem is, too many of us are dying to show off to others that we’re members of law club. And one of the ways we do it is by trying to sound like a lawyer when we speak, and especially when we write. This is a problem because sounding like a lawyer is the same as sounding like a tool.

I’ve come up with 20 lawyerisms that do nothing to advance the message you’re trying to send, but instead show that you’re a member of law club. And that you sound like a tool.

How many of the 20 do you use? . . .

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How To Remove “The Fluff” In Legal Writing.

25 Sunday May 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Motions

≈ Comments Off on How To Remove “The Fluff” In Legal Writing.

Tags

Brief Writing, Judge Lynn N. Hughes, Legal Writing, Legalese, Michigan Bar Journal, Plain Language

A Standard Motion Revised, by Judge Lynn N. Hughes, Plain Language, Michigan Bar Journal (May 2014)

http://www.michbar.org/journal/pdf/pdf4article2367.pdf

Judge Hughes eliminates unnecessary words, what he calls “the fluff.” In a simple, direct example, Judge Hughes clearly marks which words are meaningless, useless fillers.

You see this language used every day by lawyers and legal professionals. It is common as dirt. Some writers insist that archaic legalese is “required,” although there is no court rule, case law, or statute to support that opinion. It is not a “legal term of art.”

The point of legal writing is to persuade the reader – the court. Why do we add “the fluff”? Beats me. -CCE

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Benchslap Open Season on Acronyms.

30 Wednesday Apr 2014

Posted by Celia C. Elwell, RP in 9th Circuit Court of Appeals, Acronyms, Appellate Law, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Legal Writing, Legalese, Readability

≈ Comments Off on Benchslap Open Season on Acronyms.

Tags

Acronyms, Benchslap, Brief Writing, Chief Judge Alex Kozinski, D.C. Circuit Judge Kavanagh, D.C. Circuit Judge Silberman, Legal Writing, Legalese, Mark Hermann, Ross Guberman

Alphabet Attack, by Ross Guberman’s Legal Writing Blog

http://legalwritingpro.com/blog/alphabet-attack/

It wouldn’t be spring in America without some federal judges publicly criticizing attorneys in a genre now known as ‘benchslap.’

The offended court this time: the D.C. Circuit. The court’s target: acronyms in briefs filed in a complex telecom dispute. The benchslap: “’It is ordered . . . that the parties submit new briefs that eliminate uncommon acronyms used in their previously filed final briefs.’ The court even cited its own practice handbook for good measure: ‘[i]n briefs the use of acronyms other that those that are widely known should be avoided.’ . . .

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Legalese And Other Words You Should Always Cut.

29 Saturday Mar 2014

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

≈ 1 Comment

Tags

ABA Journal, Ambrose Bierce, Bryan A. Garner, editor of the New York Evening Post, Faults, Index Expurgatorius, James Gordon Bennett Jr., Law News Now, Legal Writing, Legalese, Little Blacklist of Literary, New York Evening Post, William Cullen Bryant

Ax These Terms From Your Legal Writing, by Bryan A. Garner, Law News Now, ABA Journal

http://tinyurl.com/kaoqz2o

William Cullen Bryant, editor of the New York Evening Post from 1829 until 1878, created an ‘Index Expurgatorius’ for his newspaper. Certain words simply weren’t allowed in its pages.

Likewise, James Gordon Bennett Jr., owner of the New York Herald from 1867 to 1918, had his ‘Don’t List.’ For example, he wouldn’t allow his journalists to write executive session when they meant secret session.

Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a ‘Little Blacklist of Literary Faults,’ published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.

Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them. . . .

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Sayeth or Saith? Actually, It’s Neither.

22 Saturday Feb 2014

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

≈ Comments Off on Sayeth or Saith? Actually, It’s Neither.

Tags

17th Century, Affidavit, Bryan A. Garner, Further Affiant Sayeth Naught, Garner’s Dictionary of Legal Usage, LawProse, Legalese

LawProse Lesson #149: “Further Affiant Sayeth Naught,” by Bryan A. Garner, LawProse

http://www.lawprose.org/blog/?p=2506

Further affiant sayeth naught.

Many affidavits close with this classic legalese or some variation of it. Other than the obvious questions (‘What does it mean?’ and ‘Is it necessary?’), this phrase gives rise to two stylistic dilemmas.

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Deleting Legalese and Using Clear Language in Legal Writing.

22 Sunday Dec 2013

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

≈ Comments Off on Deleting Legalese and Using Clear Language in Legal Writing.

Tags

Carol Bast, Court Order, Florida Bar Association, Judge Steven D. Merryday, Legal Writing, Legalese, Plain English, Plain Language, State Bar of Michigan

Lawyers Should Use Plain Language, by Carol M. Bast (published in October 1995 Florida Bar Journal)

http://www.michbar.org/generalinfo/plainenglish/PDFs/85_oct.pdf

I have often heard the excuses for using legalese. Clients expect it. It sounds better and well, just, more “legal.” Would it surprise you to know that there is no statute, case law, court rule, or other legal authority that requires legalese? There simply isn’t.

I also have heard the excuse that legalese impresses the court. It sounds more official. Did your brief win because it sounds more pompous or because your argument was more clearly explained and understood by the court? To illustrate that point, please read this Court Order posted by Lowering the Bar Blog:

http://abovethelaw.com/uploads/2012/11/Merryday-Order.pdf

If you need further proof of dropping legalese in legal writing, see this compilation of outstanding articles by members of the Plain English Subcommittee of the State Bar of Michigan. It is a valuable motherload of articles of clear writing, and well worth studying by anyone who aspires to write well. -CCE

http://www.michbar.org/generalinfo/plainenglish/

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