Last Sunday, the New York Times reviewedInside of a Dog: What Dogs See, Smell, and Know by Alexandra Horowitz. The author tries to take us inside the mind of a dog, drawing on the work of an early Twentieth Century zoologist who argued that understand an animal, one must first understand that animals ümwelt, or “self-world.” The ümwelt is the animal’s subjective experience.
Suppose I take my dog for a walk, and we walk past a rose bush in full bloom. I might look at the flowers and remark on their brilliant color or the fullness of the blossoms. To my dog, however, it’s just another plant. In his ümwelt it is no different from a ragweed or a dandelion. He might lean in to take a whiff, not of the fragrant flowers, but rather to see if any other dogs have urinated on the plant lately.
Although I have never smelled a legal document to check for urine, I can see how effective legal writing depends upon connecting with the ümwelt of the reader. A phrase like “piercing the veil” should be well within the ümwelt of a judge or attorney, but it is likely meaningless to laypeople – it is asking my dog, Max, if the rosebush is pretty.
<sniff sniff>“Oh, Talula, the beagle a couple doors down was here. I like her. She’s pretty. She let’s me sniff her butt.”
Different readers look for different things. Remember that.
I am a litigator by both training and inclination, so contract drafting is something I don’t think about very much (as evidenced by the brevity of my fee agreements). However, Kenneth Adams is out to change the way contracts are written. He is the author of A Manual of Style for Contract Drafting, and the ABA Journal named him a Legal Rebel for his efforts.
Below is an interview in which Adams deconstructs the merger agreement between Oracle and Sun (a major deal if ever) and shows how the contract is full of unnecessary paragraphs and clauses (never mind unneeded words).
I admit it. I am not proud of this, but I bought the new Dan Brown novel The Lost Symbol yesterday. The very day it was released. To make my shame even more acute, I finished it about 6 hours. It is the latest book to feature Robert Langdon, the character that made Dan Brown a zillionaire. Langdon is a symbologist who follows trails of symbolic and metaphorical clues, thus saving the Vatican from an antimatter explosion, or finding the Holy Grail.
I make my confession shamefully because I am well aware that his books are page-turning mind candy. The Da Vinci Code was so bad that even as I obsessively turned page after page, I found myself thinking that it was the worst book ever written. This new book is actually quite good, and like all Dan Brown novels – even the bad ones (perhaps especially the bad ones) – it left me to ponder big, philosophical questions.
So what does this have to do with legal writing?
One of the recurring themes in the three Robert Langdon books is that words are often imprecise. They can have multiple meanings. Think of The Da Vinci Code, which by now everyone has read (or at least seen the movie), and how the clues depended on the multiplicity of meaning:
In London lies a knight a Pope interred.
His labor’s fruit a Holy wrath incurred.
You seek the orb that ought be on his tomb.
It speaks of Rosy flesh and seeded womb.
If you remember, the poem led Langdon and Sophie to the Temple Church because the Knights Templar built it and several are buried there. Other misleading words in this little quatrain include the reference to “Rosy flesh and seeded womb,” all believed to be associated with the Grail myth.
Of course the Temple Church was a red herring – the knight was Sir Isaac Newton, not a medieval Crusader, the Pope in question was not the Bishop of Rome (the Pope’s official title, BTW), but rather Alexander Pope. The orb of Rosy flesh and seeded womb – an apple, the inspiration for his work on gravity.
While ambiguity and wordplay has its place in fiction, it has no place in legal writing. Lawyers spend thousands upon thousands of hours each year trying to divine the precise meaning of poorly chosen imprecise words. As any transactional lawyer can tell you, the meaning of a particular word can have consequences with several zeroes.
It is the lawyerly quest for precision that probably caused us to start using those familiar doublets and triplets – “cease and desist;” “aid and abet;” “him, his heirs, and assigns” – in the first place. Rather than add extra words to cover all possibilities, let’s just choose the right word. “Stop” is simpler and, frankly, sterner than “cease and desist.”
Effective legal representation depends on clarity. That begins with word choice. Your reader – whether it’s a court, a client, or an opponent – should not have to go on a Grail Quest to get your point.
The Federal Rules of Evidence have been rewritten for clarity. This almost infuriates me – if I had to suffer through the incomprehensible double (or triple) negatives and the exceptions to the exception, why shouldn’t the current crop of law students? The Rules of Evidence were the legal equivalent of a Russian novel – far too long, and everyone is named Misha.
No longer. The Rules of Evidence have been completely “restyled” in plain English for clarity. The new rules are not currently in effect, but can be read here (4MB PDF). The document at that link lists the the text of the current rule side-by-side with the amended rule, making the changes, well, plain. Take a look at Rule 501, the privilege rule:
It’s easy to see which is the rewritten rule. Even though the text could not be any different, the substance of the rule remains the same. Rule 807 – the residual hearsay exception – undergoes a similar transformation:
What is striking about these amendments is that clarity is achieved as much by formatting as by changes in language. A single run-on block of text is difficult for most people to read. Break up the text with bullet points, em-dashes, and indentations. Your writing will improve greatly.
I still think that law students should suffer. At least they’ll still have to read Palsgraf.
