The quest for accuracy in legal writing can sometimes lead to what can be termed as “the illusion of completeness.”
Meticulous Accuracy Can Be Problematic
While the aim to be meticulously accurate is well-intended, it can inadvertently hinder the clarity and readability of the document. This creates a tension between the need for precise details and the equally crucial need for a text that is easily understood.
The drive for meticulous accuracy in legal writing is well-intentioned but can often detract from the clarity and readability of the text. To illustrate this point, consider the opening sentence of a recent appellate court opinion:
“A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was traveling.”
This sentence, while accurate and thorough, is cumbersome and detracts from the user experience. For starters, it raises the question of why the locomotive is the subject of the sentence when most lawsuits commence because the plaintiff initiates legal action.
A more straightforward version could be:
“This lawsuit was brought by Kelli Smallwood…”
The Sometimes Flawed Pursuit of Accuracy in Legal Writing
In their quest for comprehensive accuracy, legal writers often err on the side of verbosity. Phrases like “the automobile in which she was traveling” could easily be simplified to “her car,” without any loss of meaning or accuracy, unless ownership is a significant legal issue in the case.
Yet, many legal writers would argue against such simplification, insisting on keeping the longer version to maintain thoroughness.
In daily conversation, phrases like “her car got hit by a train” suffice to convey the idea. Legal writing should not entirely shun colloquial expressions, particularly when they enhance readability without sacrificing clarity or relevant detail.
Another point of contention is the inclusion of seemingly unnecessary details, like full dates. For example, stating, “On March 14, 2001, Kelli Smallwood was injured…” might suggest that the specific date is legally significant when it often isn’t.
A simpler alternative like “in early 2001” could convey the timing without causing readers to memorize irrelevant details.
The Balancing Act: Readability Versus Accuracy
In closing, while accuracy in legal writing is often important, especially in judicial opinions, it should not come at the cost of readability. A
well-crafted legal document should facilitate understanding while maintaining the necessary level of accuracy. In essence, good legal writing should strike a balance between the two.
Legal writers should liberate themselves from the notion that additional detail automatically confers reliability. Overemphasis on accuracy can make legal documents not just difficult to read but also susceptible to misinterpretation due to their complexity.
Improving your skills in legal writing doesn’t just mean adding more details; it also involves honing your ability to communicate effectively and clearly.
This might sometimes feel counterintuitive, especially for legal professionals who equate detail with thoroughness. But remember, good writing, particularly in legal contexts, often requires a nuanced approach that considers both accuracy and readability.
Counter-Intuitive Nuance in Legal Writing
A lot of good writing is counter-intuitive to the way lawyers tend to think (e.g., having the presumption that adding more detail is useful because it indicates trustworthy “accuracy”)
If you want to improve your legal writing, check out BriefCatch, a great product by attorney Ross Guberman.
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Your entire article comments on the “wrongness” of a sentence. However, one of the very first sentences in support of your argument contains a usage error. “To start with a seemingly small matter, why is the locomotive is the subject of the sentence? – “IS” should be deleted.
Just a thought….
And of course there’s the “effective advocate’s way” of writing the same sentence:
Kelli Smallwood is here in court in her wheelchair today, seeking justice from the Illinois Central Railroad because one of its 40-ton locomotives barreled through an unguarded roadway intersection two years ago — never blowing its horn, never pausing as it smashed her Toyota Celica into bits of scrap metal that it strewed along the next 300 yards of railbed.
I was about to comment on the active voice point when I read the above comment, which led me to a different comment. Word choice is also important, so why did “car” become “vehicle” in the revised sentence? I have heard a judge comment that “normal people drive cars, but lawyers drive vehicles.”
It sounds like I’m picking on Mr. Peterson, and I don’t mean to be. We all have our writing weaknesses, and I know I am as guilty as any other lawyer of overusing the passive voice, using words that are “only heard in court,” and using twelve words when one would do. The only way to avoid these problems are to practice, practice, practice your writing (including edit, edit, editing it thoroughly) and to let someone else look it over with a fresh eye to point out the little things you missed.
I heartily agree with your suggestions, Ernie. You hit the nail on the head again.
Your revision of the sentence in question is a vast improvement. It could be improved even further by changing the verbs to active voice.
Original sentence:A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was travelling.
Clearer sentence:This lawsuit was brought by Kelli Smallwood who was injured when her car was hit by a train at a railroad crossing.
Even clearer sentence:Kelli Smallwood sued Illinois Central after one of its trains struck her vehicle at a railroad crossing in early 2001.
Lawyers fear verbs, and for no good reason. Verbs are the engines that drive sentences, yet we water them down by using passive voice. Instead of saying “the lawsuit was brought by Kelli,” say “Kelli brought the lawsuit,” or better yet, “Kelli sued [whoever].” Set the verbs free! Let them work! That is the subject of another lesson, I know.
“For those writers who want to be completely accurate I suggest they learn a computer programming language.” Nineteen years ago I told the dean of my journalism school the same thing. He looked at me as if I had antlers growing from my head. After a career in journalism I went to law school. Now my colleagues praise my legal writing.
Much of the difficulty can be traced to drunk law review editors at Harvard, Columbia, and Penn. The Blue Book stifles clarity. Ernie’s examples are good. Now try adding some parallel citations with pinpoints to each reporter, and perhaps some Shepardizing results… I hated cite-checking. I hated editing articles even more.
I’m one of those weirdos who thinks that, with only a few exceptions, citations belong in footnotes. If the exact citation matters to the substance of the argument, I can see a case for a short form of it. Perhaps this is one of the causes of the gulf between academic lawyers (who use more footnotes than are good for them) and practicing lawyers (who couldn’t use a footnote properly if it bit them)?
Amen, brother Ernie. I am all the time asking other lawyers in the firm why we’re including seventeen words that appear to mean the same thing. Would the import of this document change if we left out this word? If so, can you explain how so I understand the difference between terms I once thought were identical? If not, isn’t it a redundancy, and can’t I take it out?
Invariably, I get told to leave the terms in. “Belt and suspenders.” It makes me crazy.
See you at Pop!Tech….
I love this post. I used to work in the appellate court in Illinois. Part of our job was to read all of the opinions that were issued, even those that were not published. One such unpublished opinion involved a juvenile. With juvenile cases, only the child’s initials are used, that way the child’s identity is not revealed. The opinion began as follows:
T.J. Jr. (“T.J.”) appeals from a finding of juvenile delinqunincy. T.J. resides with his mother Florence Jackson and father Thomas Jackson, Sr., at 123 Main St., Apt. 201, Rockford, Winnebago County, Illinois.
Although the names in mine are ficticous, the ones in the opinion were not. All of the information was clearly irrelevant of course. I don’t know what the judge was thinking when he let this one go through. I’m just glad that the court used initials so the juvenile could not be identified.
Good article. Try this:
Kelli Smallwood was injured when her car was hit by a train at a railroad crossing. She sued the Illinois Central Railroad Company, alleging that Illinois Central failed to . . . etc.
Judge Alex Kozinski of the 9th Circuit works very hard to write with brevity and wit. His opinions are often fun to read. His recent opinion in the Sex.com case is a typical example:[ https://www.ca9.uscourts.gov/ca9/newopinions.nsf/999D1D5B0D734B6088256D6D0078CB88/$file/0115899.pdf?openelement ]