“Turning out flashy, dense, complicated prose is a breeze; putting things down in simple terms that anyone can understand takes brainwork.” Patricia O’Conner, Words Fail Me: What Everyone Who Writes Should Know about Writing (Harcourt 1999).

and

“Simplicity is widely praised but narrowly practiced.” Robert Gunning, The Technique of Clear Writing 68 (McGraw-Hill 1968).

I just read a short article by an appellate judge who said that lawyers should write their briefs in plain English.

I am not trying to be smart or flippant or disrespectful—this judge means well. But appellate briefs do not need to be written in plain English and probably should not be written in plain English. I explained why here and here.

What this judge probably meant is that appellate briefs should be clear, direct, and as simple as possible given that their primary audience is a legally trained judge.

I think my reaction is connected to a sense that we diminish the value of plain English, the necessity (in some documents) of plain English, and the difficulty in producing plain English when we say, essentially, “every legal document should be in plain English.”

No.

Credit-card agreements, residential leases, employee handbooks, jury instructions—yes.

But not interoffice analytical legal memos. Not commercial contracts between sophisticated parties represented by counsel. And not appellate briefs.

I had a bad experience related to legal writing once. To me, it was an awful, sickening experience. But to put it in context, I offer the following list of the worst experiences of my life:

1. Death of my father.

2. Divorce.

3. Aftermath of divorce.

4. [Undisclosed personal matter.]

5. School-related matter involving one of my children.

6. Illness of one of my children.

7. [Undisclosed professional matter.]

* * *

12. Accident in which I broke my wrist, arm, and pelvis.

* * *
17. First call-back interview for a law-firm job.

* * *

21. Being a landlord.

22. Clearing up a rat infestation at a rental house. See #21.

* * *

28. Brake failure in a car.

* * *
31. Discussing my plain-language revisions to a set of jury instructions before an advisory committee.

Someday I promise to write about the 31st worst experience of my life.

(Note: despite the rather dark content of this post, I was actually trying to be funny once I got past the first 6. Fail?)