Bibliography

For anyone interested in reading more about legal writing in plain English, here are the sources for the five-part series published on this blog:

Robert W. Benson and Joan B. Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. L.A. L. Rev. 301 (1987), available at http://digitalcommons.lmu.edu/llr/vol20/iss2/2/(last visited January 23, 2017).

Judith D. Fischer, Bareheaded and Barefaced Counsel: Courts React to Unprofessionalism in Lawyers' Papers, 31 Suffolk U. L. Rev. 1 (1997).

Sean Flammer, Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 Legal Writing: J. Legal Writing Inst. 183 (2010), available at http://journallegalwritinginstitute.org/archives/2010/183.pdf (last visited May 1, 2017).

Bryan A. Garner, Advanced legal writing & editing: a LawProse Seminar (LawProse, Inc.) (2014).

Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, 84-Feb Mich. B.J. 44 (Feb. 2005).

Bryan A. Garner, The elements of legal style (Oxford University Press) (2002).

Lynn N. Hughes, Clearing the Fog of Words: Writing for Effect and Efficiency (The University of Texas Admiralty and Maritime Law Institute 2003), available at http://txs.uscourts.gov/sites/txs/files/clearing_fog.pdf (last visited May 1, 2017).

The iron imperative of writing: Don't waste my time, http://www.withoutbullshit.com (April 22, 2015).

Alex Kozinski, The Wrong Stuff, 1992 BYU L. Rev. 325 (1992), available at http://digitalcommons.law.byu.edu/lawreview/vol1992/iss2/2 (last visited May 1, 2017).

Lance N. Long and William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning on Appeal?, 12 J. App. Prac. & Process 145 (2011).

David Mellinkoff, Plain English in the Law, 73 Mich. B.J. 22 (Jan. 1994).

Jaime Lee Mignon, How and Why We Write, 50 DePaul L. Rev. 1095, 1097 (2001).

George Orwell, Politics and the English Language, (1946), The Complete Works of George Orwell, available at http://www.george-orwell.org/Politics_and_the_English_Language/0.html (last visited January 23, 2017).

Pennsylvania Plain Language Consumer Contract Preapproval - Statement of Policy, 37 Pa. Code § 307 (1994).

Steven Pinker, The sense of style: the thinking person's guide to writing in the 21st century! (Viking) (2014).

PLAINlanguage.gov, Fed. Plain Language Guidelines (March 2011) (Rev. 1, May 2011).

William Strunk & E. B. White, The elements of style (Allyn & Bacon) (2000).

Peter Tiersma, The Plain English Movement, http://www.languageandlaw.org/PLAINENGLISH.HTM (last visited May 21, 2017).

Part V: Why Bother

One delightful string of adjectives describes legal writing as

flabby, prolix, obscure, opaque, ungrammatical, dull, boring, redundant, disorganized, gray, dense, unimaginative, impersonal, foggy, infirm, indistinct, stilted, arcane, confused, heavy-handed, jargon and cliché ridden, ponderous, weasling, overblown, psuedointellectual, hyperbolic, misleading, incivil, labored, bloodless, vacuous, evasive, pretentious, convoluted, rambling, incoherent, choked, archaic, orotund, and fuzzy.

Ouch.

Alas, these attributes have deep roots. "Our profession learned law before it learned English," notes plain-language guru David Mellinkoff. And ever since 1066 when the French-speaking Normans, accompanied by their Latin legal documents, invaded England—the source of U.S. jurisprudence—advocates of straightforward laws and ungarbled precedent have had a fight on their hands.

The other posts in this series went over some general principles of plain English writing. But these efforts take time, and in the end, do any of them matter? Why invest in clarity and concision if the people reading your papers don't care?

What have studies found?

Let's be blunt: Does the quality of your writing control the result of your case? Honestly, it probably doesn't. In an empirical study of whether "readability," or the length of words and sentences, bears on an appeal's chance of success, the authors found no correlation between readability and outcomes. But they also noted that readers, including judges, generally prefer conciseness and readability, and these readers value "readable" writers as more credible.

One of the original academic works on this issue asked readers to assess passages written in legalese or plain English. Respondents who read legalese rated these passages as weaker and less persuasive than the respondents who read the plain English versions. They also accorded the authors less professional prestige. In another survey, distributed to 800 judges, two-thirds of the respondents preferred plain language to legalese, while another set of respondents would rather see informal language than legalese.

What have judges said?

Judges themselves acknowledge the significance of succinct direct writing. The Hon. Murry Cohen, an appellate judge in Texas, addressed this exact question, stating "I used to think [good writing] doesn't matter so much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don't even think about it."

In 2003, District Judge Lynn Hughes published an outline entitled "Clearing the Fog of Words: Writing for Effect and Efficiency," which describes some of the "simplified, clear forms" that judges want to see. Judge Alex Kozinski of the Ninth Circuit, on the other hand, issued advice to an audience on how to lose an appeal. He recommends using a "fat brief" which "tell[s] the judges right up front that you have a rotten case," and then to "use convoluted sentences," personal attacks, legal jargon, and plenty of Latin to distract the court from your main argument.

Critically, bad writing undermines its own credibility. In a review of general unprofessional conduct in lawyers' writing, one author noted that even errors in spelling, grammar, and typography "often occur in combination with other errors, and seem to be viewed by the courts as indicators of a lawyer's general lack of competence."

 

What have cases held?

Counsel's inability or refusal to present an argument well has definite consequences, no matter how well-founded the argument itself. Poor or verbose writing has led to litigation, sanctions, disciplinary actions, denial of costs, dismissal of cases (most frequently in federal courts), and general derision from the courts.

In New York alone, before the Court of Appeals imposed limits on length, the Court occasionally denied costs to the prevailing party based on the “excessive length” of the party's briefs. Horowitz Bros. & Margareten v. Margareten, 64 N.Y.2d 1008, 1010, 478 N.E.2d 194, 195 (1985); Rochester City Sch. Dist. v. Rochester Teachers Ass'n, 41 N.Y.2d 578, 584, 362 N.E.2d 977, 982 (1977). The Court also bemoaned overblown, haphazard arguments which it chalked up to “great technological advances in the methods of reproduction of the written word.” These advances are “[t]oo often. . .viewed as a license to substitute volume for logic in an apparent attempt to overwhelm the courts, as though quantity, and not quality, was the virtue to be extolled.” Slater v. Gallman, 38 N.Y.2d 1, 4–5, 339 N.E.2d 863, 864 (1975).

Ouch again.

More recently, bad writing has led to entire lawsuits, for example O’Connor v. Oakhurst Dairy—the case where backpay for delivery drivers' overtime turned on an Oxford comma. Another example, which the Eleventh Circuit issued in 2015, is an unpublished opinion in Coyote Portable Storage v. PODS Enterprises, No. 13-14996. This case involved two royalty provisions in a series of franchise agreements, which, the Court wrote, "could be exhibit A in a law-school class on bad drafting."

Coyote Portable Storage depended on what was included in the term "net sales." The definition as written looked like this: "the total revenue…excluding sales tax and insurance as explained above, less discounts, credit memos or adjustments and bad debt expense, and monies received as part of the cross country move program…[.]"

The issue came down to whether the "and" in front of "monies received" added the monies received into the amount of total revenue itself, or into the amount excluded from the total revenue. The court had to use extrinsic evidence to determine which formulation was correct, and ultimately held that "monies received" were part of the excluded amounts.

Conclusion

In the end, you won't win a case based on how simply you present your argument. But does clear, succinct, direct writing help? And does it eliminate variables which can interfere with the court's perception of your case? We know from scholarship, legal outcomes, and judges' own words that it absolutely does.

Of course, that doesn't make it easy. The quote that opened this series, from legal writing authority Bryan Garner, acknowledges that "[a] writer is someone for whom writing is more difficult than others." So it may be daunting, but knowing the value of quality legal writing may console you over your multiple revisions, until your argument is as clear and direct as it can be.

 

Part IV: Use plain language

Plain language puts the message before anything else. It's another strategy to keep the focus off the writer and on the point the writer wants to make. The US federal government describes it like this:

Plain language (also called Plain English) is communication your audience can understand the first time they read or hear it.... No one technique defines plain language. Rather, plain language is defined by results—it is easy to read, understand, and use.

 

In practice, plain language might look like this:

  • Before: It is imperative that persons being transported in a motor vehicle utilize the vehicle's safety restraints, subject to the risk of severe bodily harm or injury, up to and including death.

  • After: When you're in a car you should wear a seatbelt. Not wearing a seatbelt is dangerous and you could die.

 

  • Before: During trial, Plaintiff-respondent admitted that both at the time the parties entered the 2007 Lease, providing additional basement space to Defendant-appellant, and continuously thereafter through and including September 2008 when Plaintiff-respondent admitted changing the locks and thereby evicting Defendant-appellant from the premises, the basement space that was the subject of the 2007 Lease had already been leased to another tenant in the building, namely a real estate office.

  • After: The landlord admitted it had leased the additional basement space to a different company before leasing it to the tenant. This was true when the landlord first signed the agreement to lease the additional space to the tenant in 2007 and it remained true for the lease's duration, until the landlord changed the locks in September 2008 and constructively evicted the tenant from the premises. 

 

  • Before: ORDERED that the order entered February 24, 2016, is modified, on the law, by deleting the provision thereof, upon renewal, adhering to so much of the determination in the order dated August 3, 2015, as denied those branches of the motion of the defendant Richard D. Hong which were for summary judgment dismissing the first and second causes of action insofar as asserted against that defendant, and substituting therefor a provision, upon renewal, vacating that portion of the order dated August 3, 2015, and thereupon granting those branches of the motion.

  • After: The August 3, 2015, order in this case denied defendant Richard D. Hong's motion for summary judgment on the first and second causes of action. The motion was renewed and the trial court affirmed the denial in an order entered February 24, 2016. We now vacate the part of the February 24 order that affirmed denial of summary judgement, and grant Hong's motion on these causes of action.

 

  • Modern [1946] English: Objective considerations of contemporary phenomena compel the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account.

  • Plain-language original: I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all. (George Orwell: ‘Politics and the English Language'. First published: Horizon. — GB, London. — April 1946.)

After slogging through the oppressive legal- and bureaucratese in the first versions, the crisp examples in the second are the written version of emerging from a humid steam room into a cold plunge pool. Here's a final example, from the world's best waiver and disclaimer:

But even though you might get hurt or lost, you’re agreeing to all this crap because you want to run this race. You are therefore releasing and discharging all race officials, volunteers, sponsors and municipalities, as well as the rocks, roots, bugs, tree limbs, and other stuff, dead or alive, gnarly or not, that might poke an eye out or otherwise hurt you.  Because you know that trail running is a high-risk activity.

 

So how can you use plain language to simplify and clarify your own writing?

For lawyers who are comfortable with traditional bloated legal writing, simplifying words and arguments in a shift to plain language feels strange and almost condescending. But it doesn't come across that way. With practice, plain language results in clarity and quick understanding. In the example about the seatbelts above, which version is more likely for the reader to remember?

Several guides and checklists make plain-language strategies more accessible. For example, Appendix C of the Pennsylvania Plain Language Consumer Contract Act sets out principles mirrored by authors such as Strunk & White and Richard C. Wydick:

  IV. GENERAL PRACTICE POINTERS

 A. Use short words, short sentences and short paragraphs.

 B. Use active voice.

 C. Eliminate legalese such as:  HEREBY, THEREOF, HERETOFORE, THEREAFTER.

 D. Use familiar vocabulary.

 E. Rephrase legal jargon into simple language.

 F. Use names or pronouns consistently.

G. Define words by using commonly understood meanings.

George Orwell recommends the following straightforward list of rules: 

i. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

ii. Never use a long word where a short one will do.

iii. If it is possible to cut a word out, always cut it out.

iv. Never use the passive where you can use the active.

v. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

vi. Break any of these rules sooner than say anything outright barbarous.

And the Center for Plain Language and Plain Language Network offer two more checklists to assess and improve your writing.

As helpful as checklists and other editing devices are, they require a lot of investment once the drafting is over. There's nothing wrong with that; after all, drafting is only a small portion of the final product. But another useful strategy, during the writing process itself, ensures that your legal writing audience will quickly grasp even convoluted arguments: Pretend you're writing to a bright 11th-grader, and your writing tends to fall into place.