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 year, year and a half (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.