Theodore L. Blumberg practices entertainment law in Manhattan. He has written a book about legal writing. In it, he said, “As a colleague of mine once put it, ‘I never met a man who didn’t think he was a great lover or a lawyer who didn’t think he was a great writer. Ninety-nine times out of a hundred, they’re deluded.'”
Theodore L. Blumberg, The Seven Deadly Sins of Legal Writing 1 (2008).
A commenter asks:
[In writing questions presented and issue statements] is there any historical or legal reason why (some) lawyers try to cram everything into one sentence? I have noticed that this unfortunate custom prevails also among lawyers from other, non-English-speaking jurisdictions, which appears to indicate that there must be some method to this this madness.Wayne says:
I was taught to do it that way in law school, and I taught my students to do it that way for several years. It is also a common convention in legal writing today.
So we were taught that way because it was a convention, and it was a convention because we were taught that way.
But why?
From the appellant’s brief in a criminal matter:
Did the Court of Appeals err in holding that the prosecution discharged its affirmative burden of establishing that the appellant’s confession was not the product of his illegal arrest and detention and, therefore, was admissible against him, by concluding that the act of police interrogators in confronting the appellant with the inculpatory admissions of an alleged co-defendant prior to eliciting appellant’s confession, constituted an adequate “intervening event” which supposedly broke the causal chain between his illegal arrest and detention rendering his confession “a product of a free will,” notwithstanding the fact, that the record irrefutably demonstrates that the appellant was arrested illegally, without the benefit of a warrant issued by a neutral and detached magistrate, in violation of Chapter 14 of the Code of Criminal Procedure, was thereafter interrogated while illegally detained, was, at all times during his 22 hours at the homicide division, in the presence and under the control of the police, was never taken to a magistrate, never spoke with a lawyer and was mislead by the interrogators about what he was actually being charged with?
A single sentence of 179 words. We can do better than that, can’t we?
My try:
Smith was under police control at the station for 22 hours. Police never took him before a magistrate or let him speak with a lawyer, and they misled him about the charge against him. They then arrested him without a warrant—which the prosecution admits was illegal. But the prosecution asserts that when the police confronted Smith with inculpatory admissions of an alleged co-defendant, that intervening event broke the causal chain between his illegal arrest and his confession.
- Was the court of appeals correct that the prosecution carried its burden of proving this break in the causal chain, rendering Smith’s confession a product of his free will?
I gave it a shot. Thoughts?
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.
Recommendations
I’m pleased to announce that my colleague, Kamela Bridges, and I have signed a contract with Aspen Publishers for a new book: Writing for Litigation.
It’s a document-by-document guide to . . . well . . . writing . . . for litigation. Look for it in 2011.