Category Archives: Plain English

“Write briefs in plain English”

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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.

One of the worst experiences of my life

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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?)

Plain English memos and briefs: a series, part 4

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Practical advice for legal-writing teachers
In my first-year legal-writing course, I don’t tell my students to write their memos and briefs in plain English for these reasons:

  1. I don’t have time to cover the principles of plain English. (My principles are here. Another list is here.) I’m too busy teaching analysis, organization, use of authority, legal research, conventions of legal writing, and citation.
  2. Some legal employers might react negatively to memos or briefs written in plain English because plain English emphasizes an informal, colloquial writing style.
  3. Memos and briefs aren’t intended for nonlawyers and don’t need to be written in plain English.

Some teachers of first-year legal-writing courses probably do tell their students to write in plain English. But those teachers probably don’t mean “true” plain English as I define it: English that can be read and understood by nonlawyers.

What legal-writing teachers probably mean by “write in plain English” is “avoid a hyper-formal writing style and the excesses of traditional legalese.” That’s good advice.

Plain English memos and briefs: a series, part 3

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What plain-English principles apply to memos and briefs?
Some plain-English principles apply to memos and briefs. For example:

  • Memos and briefs should avoid unnecessary Latin and archaic words.
  • Memos and briefs should be succinct (but cannot sacrifice content).
  • Memos and briefs should use headings and summaries.

But memos and briefs need not follow these plain-English guidelines:

  • Plain English avoids insider jargon.
  • Plain English doesn’t use traditional legal citation.
  • Plain English strictly limits terms of art and always defines them in plain English.
  • Plain English sometimes requires more words and sentences than traditional legal writing—to define terms of art and to explain complex subject matter.
  • Plain English values brevity—sometimes even at the expense of content.
  • Plain English often uses the first- and second-person pronouns you and we.
  • Plain English uses contractions.
  • Plain English often uses bullet lists and question-and-answer formatting.
  • Plain English uses shorter-than-average sentences and paragraphs.