What makes legal writing different, part 2
In my previous entry on this subject, I wrote about how the best legal writing reads like a well crafted essay. In this entry, I’ll tackle the second myth behind the rubbish that legal writing is somehow different.
- It’s written in legalese.
Just like the previous entry on the topic, there is a kernel of truth behind it. Historically, legal writing contained countless terms of art like “party of the second part” and “the demised premises.” This kind of language conveyed a certain aura on the lawyer, because these terms are confusing to non-lawyers (the demised premises? The house is dead?). In effect, using legalese made us special in the eyes of the clients, as if we have some special source that we can tap into to magically save the client’s tucchus.
This kind of writing, however, is just as confusing to lawyers as it is to the public at large. Most importantly, legal writing that throws legalese around willy nilly is also confusing to judges. Plain and simple legal writing, without the overuse of legalese, is most effective. I say “overuse” because in some cases the particular term is going to either so embedded in our culture that it transcends legalese, like “cease and desist.”
More troublesome than specific legal terms of art, however, are those phrases lawyers use in their writing that do little more than pad out the word count. Think of phrases such as “owing to the fact that” or “in light of the fact that” and you will get a sense of what I mean. In most instances, both phrases could be replaced with a very simple “because.” Far less intimidating to the reader, far simpler to understand, and ultimately far more persuasive. Prof. Eugene Volokh, who has had a good summer so far (if getting cited by the Supreme Court three times in the most important constitutional case of the last twenty years is a good thing), has put together an excellent list of phrases to avoid, along with suitable replacements. In every instance, the suggested replacement is clearer, simpler, and shorter than the legalese version.
Legal writing is meant to be understood, and where people’s rights are at stake clarity is even more important. Legalese hides meaning, so avoid it, and your writing will be much, much stronger.
What makes legal writing different? Nothing.
Legal writing has traditionally been treated as an entirely different animal from other kinds of writing, and most legal writing curricula have drilled the following ideas into the heads of most law student, I think mostly in an effort to portray the specialness of the profession (”See - lawyers are special because we have to understand things like quantum meruit and the nondelegation doctrine! This isn’t just a job, it’s a profession!“).
- Legal writing is not an essay or an article; it’s an argument.
- It’s written in legalese.
- Legal writing has it’s has all those citations to cases and statutes.
- Some of it is in Latin or French.
- It has ALL THOSE DAMN FOOTNOTES!
This is just the short list I came up with while lounging around the house. This list was probably true 30 years ago; it was certainly true 75 years ago; and it was gospel in the Eighteenth Century. Today, however, effective legal writing is plain and simple. More importantly, it must be enjoyable reading.
You read that correctly- good legal writing makes for enjoyable reading. The best legal writing comes across as engaging magazine journalism - think something like The Atlantic; dense and complex to be sure, but also flowing and rhythmic.
So with that premise in mind, I’m going to take a look at that list and comment on why it’s mostly bull; stuff that bad legal writers hide behind to justify their shoddy work.
- Legal writing is not an essay or an article; it’s an argument.
This statement is half-true; most legal writing is an argument. The better part of all the advocacy we do takes place on the page. By the time counsel sees the inside of a courtroom, the judge;s mind is mostly made up.
What the statement fails to consider is that most essays are arguments as well. Think of Civil Disobedience, arguably the single most influential essay in the history of American Literature, :
It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even to most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man’s shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, “I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico, - see if I would go”; and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute. The soldier is applauded who refuses to serve in an unjust war by those who do not refuse to sustain the unjust government which makes the war; is applauded by those whose own act and authority he disregards and sets at naught; as if the State were penitent to that degree that it hired one to scourge it while it sinned, but not to that degree that it left off sinning for a moment. Thus, under the name of Order and Civil Government, we are all made at last to pay homage to and support our own meanness. After the first blush of sin comes its indifference; and from immoral it becomes, as it were, unmoral, and not quite unnecessary to that life which we have made.
Sure, the Nineteenth Century prose is a little thick, but the meaning is clear. Thoreau angrily and passionately calls his countrymen out for their passive support of slavery. He makes his case in much the same way that a lawyer does - by laying out evidence and applying his moral philosophy (the law, if you will) to those facts.
Take a look at the merits brief filed in Munaf v. Geren, the Supreme Court case about whether civilian courts have jurisdiction over the habeas petitions filed by American citizens in military custody in Iraq.
Omar and Munaf are U.S. citizens who have been detained for years by U.S. officers at a U.S. prison. Their immediate custodian is a Lieutenant Colonel in the U.S. Army. Every officer up and down the chain of command is a soldier in the U.S. Army. And their ultimate custodian, the Secretary of the Army, is present within the District Court’s territorial jurisdiction. Having done no wrong, they seek only what is guaranteed to all American citizens by the Suspension Clause, the Due Process Clause, and the habeas statute: the opportunity to test the lawfulness of their continued confinement in federal court.
Yet the government maintains the courts of their country are closed to them because the Executive has elected to become part of the “Multi-National Force- Iraq.” This, the Executive claims, places federal officials beyond the reach of American courts, and the Constitution beyond the grasp of American citizens. The government is profoundly mistaken.
These two paragraphs are crystal clear - not only are we right, but they’re wrong. As you read it, you can hear the words in your head, as well as the pauses and beats. This is legal writing that makes it’s point plainly and simply, while also making the reader want to keep reading. This is top notch work (as befits a SCOTUS brief).
So while legal writing is ultimately an argument, it can also make for compelling, thoughtful reading.
Everything you know about legal writing is wrong.
It’s a bold statement, I know, but one I am certain is true. Law schools are factory farms, and law students are the cattle. After graduation, we were turned out to the world, only to discover that law school did nothing to prepare us for the actual practice of law.
Nothing.
I know this first hand. I graduated from a good - not great, but top 75 - law school. This school, which otherwise was top notch, used a standardized method of teaching legal writing. Every first year followed the same curriculum, worked on the same problems, briefed the same issues. Every. Single. One.
I always fancied myself a good writer - I had a quick wit and sharp tongue, and a way with words that stood out. I knew how to turn a phrase, I knew how to drive home a complex point in very few words. I understood that words have a rhythm and pulse, even on the page.
I got a C in Legal Writing in my first year of law school.
Simply put, I didn’t follow the format that my school demanded.
After my graduation, and about 7 months into my professional career, I was appointed a routine probation violation. Most of the time - and I mean MOST - there is no litigation involved; either the client missed his appointments his the probation officer, or he didn’t. Very little lawyering. Instead, the role of the lawyer is to stand next to the client, make the usual excuses, and then get out of the way as the judge yells at the client.
Not this time. This guy wanted to fight.
I pored over the file and found an inconsistency. I filed a motion, the judge ordered briefs, it went up on appeal.
And I made some precedent in the process.
Technically, it was a loss for the client. The appellate court announced a new rule, and then created an exception that just happened to fit my client’s facts. However, the general rule is good law, and will help somebody in the future.
I spotted an issue, made it up as I went along, and wrote a brief that stood out. I didn’t follow the format I was taught in law school, I followed my own format.
And so should you.
This goal of this blog is to help lawyers and law students follow their own format. I am excited about writing it.
