Although the output on this blog might often fail to reflect it, I’m a pretty good writer. When I draft legal briefs I’m almost exceptional.
I say that not to brag, but to get to the next, more important, point: I was not born with a natural talent for writing. I had the good fortune to work for people who insisted that I become a better writer. They not only insisted that I improve, they also took the time to show me how to improve.
Many years ago I taught legal writing at my alma mater. That year as a full time writing instructor was demoralizing. I learned that most law students don’t know how to write. It’s not their fault; no one insisted that they improve, and no one showed them how to improve.
Who showed me? A federal judge.
I worked for the judge for two years, and there was little hands on instruction. If I couldn’t figure out how to give him the legal information he needed that was my problem. But if I wrote something that was supposed to go out under his signature, he’d sit down and make me watch him edit it. He wasn’t happy about this, but if he was going fix my writing I had to watch. It felt like being in the penalty box.
He questioned every choice I made. My responses told him what he already knew: my choices were poor because they were thoughtless.
The judge used short sentences written in the active tense. He disdained nominalizations.
I would routinely begin a sentence by writing “Under Louisiana law,…” And he would routinely change it to “In Louisiana,…” Then he’d admonish: “it’s kind of obvious that we’re a court making legal pronouncements; we only need to let people know which law we’re applying.” He relentlessly struck excess verbiage.
His approach was so direct, so simple. And yet so out-of-sync with how most other lawyers and judges wrote. Sadly, as I came to realize, most lawyers and judges write poorly. I guess, it’s not their fault; no one was around to show them.
Okay, scratch that.
Actually, there is no excuse for not writing better. If you write poorly (assume you do, because the odds are you do) then you just need to find someone to help you improve.
I have a perfect recommendation: Bryan Garner.
Bryan Garner is the leading light of legal writing instruction. I’ve seen him speak, and he’s also one of the best speakers out there. I have almost all of Garner’s books, not because I felt I needed to learn more (although I did, and always will). I bought them because reading his books makes me feel like I’m sitting next to Judge Duplantier, except that Garner’s patient and takes more time to explain why certain choices make sense.
Ask anyone who’s attended one of his seminars if they enjoyed it. How many people are elated about what they learn at a seminar? Go to one of Garner’s workshops and find out.
P.S. If you want a better practice, start using the 80/20 Principle.
I agree that Strunk and White are deified. I disagree with the deification–not because their advice is wrong or bad, but because “The Elements of Style” is so thin and really doesn’t address many writing issues. But many of the absolutist rules attributed to Strunk and White in this discussion aren’t in the book.
Ernie
I was so excited after my first Bryan Garner seminar that I went out and bought all the books he recommended on better writng. My favorite is William Zinsser’s On Writing Well. Over a million copies sold. What a helpful book.
Mitch
MarkO,
Point taken, but I would hope that federal judges are, broadly speaking, well-read enough to not be tripped up by different writing styles. Also, I’d like to think that they’d appreciate writing that has its own voice and is therefore actually interesting to read. Uniformity is boring; there’s risk in either approach.
Danno?
Ernie,
I’m glad we’re agreed on absolute edicts. I think my point is that there are really three negative influences in legal writing. On one hand, you have the archaic, pompous, “paid by the word” style of legal writing that’s virtually impossible to read.
On the opposite end of the spectrum, you have the ultra-prescriptivist, rigid, arbitrary style of legal writing that produces text as dry and bland as day-old toast.
Finally, there’s the tendency you described, which is simple carelessness. Now, I don’t think agonizing over every word is necessarily appropriate, even if there might be a more ideal phrasing. It’s easy to overwork your writing and unwittingly make it worse. However, there needs to be a general awareness of usage as you write.
With words themselves, though, I think it’s ok to use some pretty uncommon ones that you wouldn’t normally hear on the street, especially when it adds variety or a signature style.
I know some of my writing wouldn’t make Mr. Garner happy – I’ve heard some excerpts from his usage book, and he disapproves of some words and phrases that I think are useful. However, good writing is like good art: to a fair degree, it’s subjective. I hope that hasn’t made me a bit closed to criticism, but as I said, I’m a bit touchy about it. 🙂
Unfortunately, many state court judges expect to read something akin to the way they write and think. Great writing, not sturctured as expected, may simply not work. And, the object is to make it work.
Sometimes, a great brief, in the wonderul style of The New Yorker, will only confuse a judge whose brain is set on something else.
Proceed with caution.
Ernie,
As I said, these were examples from law school. They were from my actual legal research and writing course, taught by a Louisiana attorney. I was criticized not only for using relatively uncommon language, but – as with ‘scant’ – for using fairly standard words that any judge would readily understand. Essentially, anything above an elementary school reading level was flagged.
Also, I was taught total abolition of the passive voice. Context didn’t matter; you lost points on any writing assignment if you used passive voice. Compound sentences were allowed, but I found them risky. I can’t recall other examples offhand, but the entire course was taught as if Strunk and White was some kind of gospel. It was stifling.
I may be a bit touchy about this, I’ll admit. But even if you exclude the fact that the academy is taking this trend too far, there are other problems. If you try and make every single phrase in a piece of writing as brief as possible, you limit your options and can wind up sounding repetitive, which is (in my opinion) a worse sin than verbosity. To use your own example, I would agree that it is usually best to say “in Louisiana” rather than “under Louisiana law,” but if you used the phrase “in Louisiana” in the same paragraph, it might be best to change it up a bit. Likewise, if you’ve just gotten through with a purely fact-based section, you might want to emphasize the shift to a legal context by saying “Louisiana law.” If you get it in your head that “under Louisiana law” is universally a bad phrasing, you miss the nuances of writing.
Moreover, I personally prefer reading pieces with different writing styles. I don’t define “more verbose” writing as necessarily worse than “more succinct” in all contexts. There are people who write with a decent amount of excess language and also achieve clarity. I’ve certainly heard of Mr. Garner, and I’m sure he has some good advice on legal writing. However, I’m less certain that the current trends in legal writing aren’t becoming as suffocating as what they’re trying to replace. Perhaps that’s not the intention, but if can turn out that way.
I didn’t mean to come off too strong about it. It’s just my two cents.
I actually disagree somewhat with the modern trend towards simplification of legal writing. It’s geared too strongly around the deification of Strunk and White, the idea that hard and fast rules (many of which are arbitrary or highly conditional) define good writing.
I graduated from law school in 2007, so I was exposed to this trend in my legal research and writing class. Here are some quibbles I had:
1) Language dumbed down to a third grade reading level: Something I wrong was actually criticized for using the word “scant.” Apparently that’s too flowery a word for modern legal writing.
2) Passive voice is always considered wrong, regardless of context: Anybody who tells you that passive voice is never proper is teaching you to write badly. In one of the pieces I wrote, I said that “X was killed.” The reason I used the passive voice is because I needed to de-emphasize the actual killer (he wasn’t the person being sued). Passive voice is useful when you’re trying to convey what happened to the victim as opposed to the culpability of the actor.
3) Virtual elimination of compound sentences: Every sentence in a legal brief needn’t look as if it were written by Earnest Hemingway. Stubby sentences become incredibly boring after a while, and the intended audience is (presumably) intelligent enough to follow a long sentence provided that it flows well.
I think the present trends in legal writing have some basis. Many people entering the legal profession are simply poor writers in general. Also, the legal profession has a storied history of turgid, impenetrable writing. However, good writing is not about reverting “Dick and Jane” or following rigid rules. The backlash has gone way too far in the other direction, and it shows.