Why is legal writing so bad?

A client once gave me a legal document and told me it was written in Klingon. I read it too and couldn’t decipher it, either. Since there are so many lawyers, I now see why Klingon is the fastest growing language in the galaxy.

I once read a judge’s order on a proposed stipulation prepared by an attorney in our firm: “The parties have entered into a stipulation. After careful study, I cannot determine what it is they are agreeing to. They seem to be discussing arbitration and there is an arbitration clause in the contract attached to the complaint. Accordingly, the matter is ordered to arbitration. The parties can file objections to this order if it is not what was intended.” My curiosity piqued, I went to the file and read the confusing stipulation. It was written in a form of sixteenth century English and could have been re-written into a single sentence: “The parties agree to arbitration.”

Execrable examples abound and not just in the legal field. In fact, one reason I began this weblog was to improve my own writing. Good legal writing is very much a “use it or lose it” skill and it’s easy to develop bad habits. Public writing is one way to keep honest.

I have a few ideas why legal writing has generally been so bad.

First, there is the long history of the use of Latin, such as “locus in quo” and the use of archaic phrases and “legalese” such as “trespass to chattels,” “aforesaid” “aforementioned” and the ever popular “hereinafter.” The development of an insider language—jargon-- is common to all occupations. The jargon can be humorous or even poignant. In my career as a Coast Guard search and rescue officer, the targets of our efforts were either called “sinkers” or “floaters” that is “boats losing buoyancy” and “dead bodies.” The single word description allowed the rescue crew to plan the appropriate response before they arrived on scene. Jargon at its best promotes efficiency. For example, the hearsay doctrine is wrapped up in a single word saying volumes to lawyers but incomprehensible without a lengthy explanation to a nonlawyer. It is efficient to use the single word “hearsay” when talking to another lawyer, especially a judge, when lodging an objection.

Jargon, improperly used, however, leads merely to confusion and puzzlement and should be eliminated. Are all the Latin phrases necessary or do they interfere with communication? Is it ever helpful to refer to the “said” contract and the “said” traffic accident? I suspect the use of this kind of jargon/legalese is done simply to maintain some perceived exclusivity of the profession. I admit that "De minimis non curat lex” just rolls off the tongue better than “The law does not deal in trifles.” Surely, “nota bene” sounds more erudite than “important point.” We want our clients, especially potential ones, to be impressed with our erudition. Despite that, we often only confuse them, living down to their expectations that lawyers charge by the word and intentionally complicate the paperwork unnecessarily. The first thing we do is kill off legalese.

Second, we are verbose when shorter is almost always better. They’re called “briefs” for good reasons. As Mark Twain said, “I didn’t have time to write you a short letter so I wrote you a long one.” It is difficult for lawyers to balance time and money considerations in their legal writing. For lawyers, time and money are different forms of the same substance just as matter and energy were for Einstein. Practice is the cure. Re-writing to achieve brevity in the long run results in more understandable and persuasive writing, which turns out to be more cost effective for the client than writing which may cost less but fail to achieve a reachable goal. Losing a case through bad writing is incredibly expensive. Here are examples of real cost savings in various industries.

Third, there is simple training through the education process. We all begin our journey towards reading and writing literacy in first grade. Lawyers end this journey more than a decade later after at least eight years of high school and college term papers. And that’s where we begin to pick up bad writing habits (among others). How many of us have spent weekends attempting to write a minimum 10-page term paper by Monday when we have only 4 pages of intelligent thoughts? How do we do it? By a concept I call “word expansion” and others would call word “weaseling.” Unfortunately, word expansion is easily accomplished by meaningless word repetition, restatement of the same concept in different language, liberal use of chain adjectives, use of garbage words, and the use of passive voice, which will usually get you at least five extra words per sentence. The imaginative use of these techniques can quickly turn four pages of ideas into a 25-page tome, even without the “advanced” techniques of adjusting margins and font size.

I’ll discuss recommendations to improve legal writing in future posts. Be sure to check out the writing resources on the left rail.

Comments

[dissertation write up]

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[dissertation write up]

Blogs are good for every one where we get lots of information for any topics nice job keep it up !!!