Of principle importance to the duteous legal practitioner is the abstention from granting preference to esoteric terminology at the expense of concise transmission of the perceived reality.
In other words, lawyers shouldn’t let their choice of words get in the way of their arguments. Year after year, this issue confronts law school grads entering the real world and flexing their legal muscles. Baby lawyers—and many seasoned ones—view their degrees as a license, if not an imperative, to churn out hollow chestnuts such as "here and before," "heretofore,” and “notwithstanding,” like it’s their job—as it frequently is. And while this may lead to an excellent boost in Scrabble scores, it's also a somewhat neophytic (pardon, prithee, the egregious slander) approach to legal writing.
But there’s a reason for this approach. It’s how lawyers—traditionally and in the popular imagination—are perceived to write.
Don’t write like a lawyer.
To be fair, not all of my colleagues agree with this proposition. In many ways, the lines drawn on the issue of whether we should or shouldn’t “write like lawyers” parallel the linguistic debate between descriptivists and prescriptivists. Descriptivists tend to simply observe reality with an understanding of language based on the natural, spoken words of its speakers in the moment. Prescriptivists, instead, focus on what a language should be; they prescribe the grammar, syntax, and vocabulary they consider correct (and often deride those who fail to comply). So in the legal context, the question becomes whether we should disavow lawyers’ embedded legal writing habits, or aspire to the habits of an ideal, Platonic lawyer—the ones that actually result in effectively transmitting an argument?
Either way you view it, both perspectives look toward the same end goal: writing that is clear and succinct and makes the point as directly as possible. And unfortunately for adherents of traditional legalese, judges are growing tired of subordinate clauses, jargon, and gratuitously multisyllabic words.
Plain language is gaining ground not just in the courts, but in other governmental institutions as well. The Plain Writing Act of 2010 requires federal agencies to write "clear Government communication that the public can understand and use."
True, plain language can have its complications—for example, critics of initiatives like the Plain Writing Act have coined the word “simplexity” to target shortcomings of using plain language to describe complex ideas. But complexity is measured on a spectrum; it’s not an all-or-nothing proposition. There's a big gap between legalese and oversimplification, and the vast majority of lawyers are a long way from venturing into simplistic territory. So, there are few drawbacks to simplifying your arguments before turning them over to a judge.
If you're curious how reader-friendly your words are (and if you can get past the problems in the accompanying copy), here’s a tool that parses your writing and tells you what education level your reader needs to understand it. What grade level is your writing?
Dana E. Heitz, Esq.
Heitz Legal, P.C.
P.O. Box 513
New York, NY 10002