Professionals, like doctors, often speak using medical jargon. Other doctors understand it, but not necessarily everyone else. This is true for anyone who uses technical language specific to their work. But in a legal matter, communication is critical. A good reason to use plain English, isn’t it? -CCE
Sesquipedalianism and an Expatiation Upon Its Antithetical Impact on Interpersonal Communications: Big Words and Why They’re Bad, by Sherry Altshuler, Aird & Berlis, LLP (with hat tip to Louis J. Sirico, Jr., Legal Skills Prof Blog)
This post on using plain English does what good legal writing should. Rather than telling you that big or complicated words are a sure way to lose your reader, it shows you with a wonderful example. I love “show, don’t tell.” It also provides an excellent list of good legal writing tips. This one is worth a bookmark. -CCE
Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence, by Alan Feldman, University of Southern California, Political Science, SSRN.com (Date posted: August 18, 2015 ; Last revised: August 21, 2015)
This paper is a detailed analysis of what type of legal writing and briefs from 1946 through 2013 have been the most influential with the United States Supreme Court and the lawyers who write them. Interestingly, lawyers who write short sentences in the active voice and who use fewer words than the majority of brief writers are the most successful. It is a fascinating read, and strongly recommended. -CCE
The Pleading, by Mark Cooney, Plain Language, 94 Mich. B.J. 3, 42 (March 2015)
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
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. . . .
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.’ . . .
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. . . .
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.
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. . . .
You finally finished drafting the argument section of your brief; you are mentally spent. So for the conclusion you copy and paste: ‘For the foregoing reasons, Defendant asks this Court to grant its motion.’ Yes, it feels a little anticlimactic and abrupt, but at least the brief is done. Perhaps you think that judges aren’t paying attention by the end anyway.
But the next time you are tempted to end your brief this way, consider that Bryan Garner, in Legal Writing in Plain English, called this type of conclusion ‘a formulaic cop-out that says nothing.’ Yikes.
Writing a strong conclusion that actually says something can be hard work. But here are some tips to get you started on ending strongly: . . . .
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
‘We are working directly with the family after sincerely apologizing and issuing a full refund for their less-than-positive travel experience,’ Southwest spokesman Brad Hawkins said Sunday night. ‘We certainly will take away any potential learnings from this experience in our constant evaluation of how to provide the best possible customer service, which is second only to the safety of every passenger.’
Setting aside the situation that led this (the short version: Chris and Heather Dainiak, parents of a terminally ill boy, were told their son could not fly sitting in his protective chair, even though he had used it on another Southwest flight just days earlier), I have to ask: what makes people talk this way? . . . .
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:
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