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
“[M]ost lawyers are dull and clumsy writers . . . .” Martin Cutts, Oxford Guide to Plain English
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
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
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.
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