Monthly Archives: August 2010

The Sound in Your Head

Some people think legal writing is all just awful:

“Lawyers write badly.” Christopher T. Lutz, Why Can’t  Lawyers Write?, in The Litigation Manual 200 (John G. Koeltl & John Kiernan, eds., 1999).

“Most lawyers write poorly.” Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 3 (2d ed., 2002).

“[M]ost lawyers are dull and clumsy writers . . . .” Martin Cutts, Oxford Guide to Plain English 172 (2004) (quoting Mark Adler).

Is it really all that bad? I’m not sure, but I will say that much legal writing is mediocre at best. In this post I offer one reason—among several—for mediocre legal writing and some recommendations for rising above mediocrity.

One cause of mediocre legal writing
Where did we lawyers learn to write poorly? One commentator has said that it’s because we are exposed to “the largest body of poorly written literature ever created by the human race.” John M. Lindsey, The Legal Writing Malady: Causes and Cures, N.Y. L.J., 2 (Dec. 12, 1990).

The author and writing expert Edward Good is more specific:

“We learned it from judges, legislators, regulators, headnote writers, treatise writers, and editors for C.J.S., A.L.R., and Am. Jur. 2d. We learned to spew out poorly written judicial fluff, endless goo, brow-wrinkling regulatory ooze, and mounds of words posing as sentences. We learned to build those weighty sentences, stretching on forever, with stuffy abstractions, piles of pillowy nouns, and imprecise compound prepositions. We learned to prefer the passive voice. We learned to proliferate clauses. We learned to write like the stuff we read. We learned, in short, to break every rule of style in the book.”

C. Edward Good, Mightier Than the Sword: Powerful Writing in the Legal Profession xx (1989).

For three years, every law student reads that stuff, particularly judicial opinions. Lots and lots of judicial opinions. Yet many judicial opinions are poorly written, and most are mediocre at best. Let’s remember that the judicial opinions in the casebooks were not chosen for their writing style; they were chosen for their content.

Once we finish law school and begin practicing law, we continue to read judicial opinions. So the pattern continues.

Now I don’t mean to be hard on judges. Their writing isn’t any worse than the writing of practicing lawyers or law professors. It’s just that their writing gets more scrutiny and more attention. Because we spend a lot of time reading judicial opinions, their words, rhythms, and patterns enter our brains. We begin to think and write like the judicial opinions we read, and that’s not good: “Lucidity does not come naturally to most law students, perhaps because they have been forced in their legal studies to read so much bad writing that they mistake what they’ve read for the true and proper model.” Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 30 (1989).

The force of all this required reading was elaborated by David Mellinkoff:

“After three years of forced reading of opinions, law students respond automatically to words by judges. Good writing or bad writing, it is a judge’s writing. This is the language of those who decide the cases. This is how it is done. The recollection of how it was said often outlasts the recollection of what was said. For better or worse, the opinion affects the basic writing pattern of the profession. And that pattern is inseparable from ‘the law’ itself.”

David Mellinkoff, Legal Writing: Sense and Nonsense 70 (1982).

What’s more, legal writers are usually busy, and “busy writers often operate on automatic pilot without much thought to the character they are portraying in their prose. And when legal writers are on automatic pilot, most tend to drift into more formal prose because they have read so much of it during their education.” Stephen V. Armstrong & Timothy P. Terrell, Understanding “Style” in Legal Writing, 17 Perspectives: Teaching Leg. Res. & Writing 43, 45–46 (2008).

But we can do better.

Recommendations

  • Get and use a reliable style manual. I recommend Garner’s The Redbook: A Manual on Legal Style and the Texas Law Review’s Manual on Usage and Style.
  • Read good nonfiction. For law, I recommend writing by Jeffrey Toobin, Professor Joseph Kimble, and Judge Richard Posner.
  • Don’t write on autopilot. Think about your audience, your purpose, and your persona. And don’t mimic the style of judicial opinions.
  • Bad legal writing is everywhere

    I hereby authorize the Merchant, or it’s Agent, to initiate a debit entry to the account indicated above at the depository financial institution named above and to debit the same to such account. I acknowledge that the origination of ACH transactions to my account must comply with the provisions of U.S. Law.

    Huh?

    How can we improve this? I don’t know enough about the substantive law or the reasons for some of the language contained in the original, but here’s a shot:

    By clicking “confirm,” you authorize the merchant or its representative to deduct the amount show below from your account at your financial institution–listed above. Your origination of this ACH transaction must comply with U.S. law.

    Student essay

    Another of my favorite student essays:

    Thoughts on Legal Writing

    When it comes to legal writing, the writing part I get—it’s the legal part that worries me.

    I think I’ve always been pretty good at writing. In fact, “Jeffrey, you’re a great writer,” is a phrase I probably heard a hundred times growing up. Sure, my parents accounted for just about all of those instances, but I still like to think there is at least some truth to it. I used to prefer math to English, but after I joined my high school newspaper and math became more than simply who in the class could calculate 7 x 8 the quickest (56, but the trickiest of the times table, right?), that was no longer the case. Grammar, too, used to be the bane of my existence, until my college roommate, a creative-writing major, showed me how powerful and effective language could be when harnessed properly. Top that off with the emerging popularity of stream-of-consciousness writing in prime-time television comedies (e.g. The Office, 30 Rock, Modern Family), and writing had gained its newest, biggest fan in me.

    I used to roll my eyes at people who told me, “You don’t answer the phone and say, ‘This is him,’ you say, ‘This is he.’” Now, however, I’m the one who says, “No, no, no, it’s fewer, not less,” and who gets upset every time people spell the opposite of win, as “l-o-o-s-e” (Seriously, it happens all the time). More troubling than all of the grammatical errors is that nobody seems to care. I wouldn’t be as concerned as I am if, when I corrected people (which isn’t that often—I do let some things slide), I were met with the reply, “Ahhh yes, thank you,” as opposed to, “Oh. Whatever.”

    But now I am entering my second year of law school, all too quickly approaching the point where I have memo upon memo to research and write, and my only thought is, “my bosses won’t care.” Honestly, are my supervising attorneys going to care if my internal memos are free from grammatical errors? Well, maybe—but will they care as much as I think they should? Doubtful. Even if I turn in writing that would make every English teacher smile, if I have left out even one case relevant to the subject matter or failed to draw the correct analogy, I’m screwed.

    The writing aspect of legal writing is of course important, but not nearly to the extent that the legal part is. Grammatical errors are just short of guaranteed to be caught by someone before the letter goes to the client or the motion goes to the judge, and even if they’re not caught: (a) it won’t alter the substance of what I’m saying and (b) the recipient probably won’t care (if they notice at all). But if I cite a case that has been overruled or try to apply a rule that doesn’t really apply, I’m in for a long talk with my boss.

    Yes, I know what you’re going to say, “Jeff, just do both—not only research meticulously and write persuasively, but also turn in well-written documents.” Okay, fair enough, but the point remains that comparatively, writing mechanics just aren’t as important as the legal argument. Time is money, and for lawyers, their time is a lot of money. They don’t have much incentive to spend 15 minutes editing a document that has already been written and can no longer be charged for when that 0.25 hours could be spent researching for (and billing) another client.

    Maybe I’m being dramatic. After all, in what other profession does one spend upwards of 50 and 60 hours on a three-page motion? Clients pay for more than just finding the law; clients pay for the eloquent conveyance of an idea. They pay for persuasion, clarity, and neatness—and they pay well. The client and judge don’t want to see a comma splice any more than a supervising attorney or judge does. Sure, they may not know it’s called that, but they’ll be able to tell the sentence doesn’t read well. If it doesn’t read well, it doesn’t argue well. If it doesn’t argue well, the judge isn’t convinced. And, if the judge isn’t convinced, well, then my client will loose.

    Student essay: Patents

    A student essay I really liked:

    Some nights, I wake up distraught with a demon of meaningless words and terrible run-on sentences frantically circling my brain. This monster comprises of a plurality of semicolons and a non-transitory signal. I can’t escape it, and I surrender, accepting that my brain still bears scars from a foray into the wonderful world of patent prosecution.

    The first painful experience I encountered when beginning patent prosecution was vocabulary. Patent prosecution, as can be expected of a form of legal writing, has its own vocabulary. A dictionary consisting of the vocabulary would contain obscure words with usage unique to the patent prosecutor. For example, an embodiment of the invention—for no good patent prosecutor ever allows a single claim to be the invention—might include a hard drive. However, that hard drive is no mere hard drive. Instead, it is a storage medium. Since a storage medium can sometimes take the form of a transitory signal, though, and since transitory signals are non-patentable subject matter, this storage medium must be a non-transitory signal. “Wherein” is another example of the vocabulary of a patent lawyer. “Wherein” is used to provide limitation and description to the element directly preceding it. However, when elements require multiple limitations, serial “wherein” clauses might appear, wherein each clause contains an additional limitation, wherein each limitation is simply painful to read. However, the dictionary would be incomplete with mere definitions and usage instructions.

    The new patent prosecutor would also need knowledge of the forbidden words of the patent world. For example, the word “may” adds a level of ambiguity that no good patent lawyer should ever write into a patent application. Accordingly, a Patent Examiner could annihilate any claim containing the word “may” as being too indefinite to be patentable. Similarly, “the invention,” when not accompanied by “embodiment of,” is a phrase to be avoided at all costs. When a Patent Examiner sees “the invention” by itself, he assumes that is the only thing being claimed.

    Another rule that all patent lawyers must learn is the strict requirement for using the word “the.” Whenever “the” is used in describing a particular element of a claim, that element must have been mentioned at some point prior to the claim. Regardless of how strange it might look and regardless of whether the element appears only once in an invention, “a” or “an” must be used if it is the first mention of the element. However, vocabulary is not the only source of pain in patent prosecution.

    Because of a strange quirk in the way the first patent statutes were drafted, every claim must be one sentence. No matter how many elements are claimed and no matter how long the sentence, the claim must be one sentence. This strict adherence to an idiosyncrasy of drafting leads to an amazing amount of unreadability in patent applications. In addition, letters and numbers, which would provide a sense of stability and structure, are often not used, because they might imply order. The use of commas is inconsistent—Patent Lawyers seem unable to decide whether they want to overuse or underuse this wonderful punctuation mark. Semicolons, on the other hand, are definitely overused. Independent clauses, dependent clauses, words, letters—nothing is safe from the Patent Lawyer’s semicolon. The ridiculous required structure and obscure vocabulary couple to create one of the most torturous treatments of human language that exist in the known world.

    Though I have experienced a mere six weeks of reading patents, it is already too late. The specter of patent prosecution haunts me. However, Intellectual Property Law is my chosen path. Therefore, I must accept the realities of the situation and move on. This is an area where a writing expert could truly shine a light of revelation. I hope that one day an expert does.