As a law student I have had quite a struggle growing from layman to learned fellow. This change for the most part has been necessary but at some point I have to draw the line. I have taken it upon myself to be an advocate for plain English in legal writing. Writing is one of the greatest tools in the legal world. The ability for lawyers, law students, Judges, legislative drafters and other legal writers to be able to communicate effectively with both lawyers and non-lawyers is essential.
The traditional writing method is the generally acknowledged and accepted method of legal writing. It is so pronounced that most legal writers are unaware of another method. It focuses more on the writing style than on the information that is being communicated, which is not the aim of writing. Plain English is the antithesis of the traditional writing method. Professor Robert Eagleson has described plain language as language that is clear, direct and straightforward. It is language which allows readers to concentrate on the message conveyed not on the difficulty of the language used.
The traditional writing method would say this;
“I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck and otherwise eat the same, or give the same away, with or without its rind, skin, juice, pulp and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of whatever nature or kind whatsoever, to the contrary in any wise notwithstanding.”
While plain English would probably say this;
“I give you all rights and interest in that orange; do what you want with it and any part of it”.
THE WAY FORWARD
I suppose there may have been a time when legalese was more accepted—but these days, our society does not look well upon speakers and writers who resort to insider language, insider phrases, to explain themselves. What must be understood is that the most important aspect of legal writing is whether the reader understands what you are saying. Thus, the court must be persuaded, your opposing counsel must know your clients’ positions, and your clients must understand what you are doing to protect their interests.
The use of many words peculiar to the legal profession are unnecessary and in most cases only serve to confuse many readers. In our laws and statutes the effect of this is glaring as different judges in different courts would interpret the same law in about two or three different ways. This would not be an issue if the legislative drafters had used simple words instead of trying to impress readers with their mastery of English language using words like thereafter, whereto and deliberately abusing the word ‘shall’ and ‘any’.
As much as I would like to criticize the traditional writing style, I prefer to focus on how to advance writers towards the plain English writing style. All legal writers must take note of the following and start making changes.
Hate Legalese: Use simple and common words that readers understand. Legalese is the antithesis of plain English. All legalisms can be eliminated. The only loss will be the legalese, and the gain will be fewer words and greater understanding. Eliminate these words: “aforementioned,” “aforesaid,” “foregoing,” “forthwith,” “hereinafter,” “henceforth,” “herein,” “hereinabove,” “hereinbefore,” “per” (and “as per”), “said,” “same,” “such,” “therein,” “thereby,” “thenceforth,” “thereafter,” “to wit,” “whatsoever,” “whereas,” “wherein,” and “whereby.”
Hate Clichés: Avoid clichés like the plague. Clichés make writers look as if they lack independent thought. They’re banal. Eliminate the following: “all things considered,” “at first blush,” “clean slate,” “exercise in futility,” “fall on deaf ears,” “foregone conclusion,” “it goes without saying,” “last-ditch effort,” “leave no stone unturned,” “lock, stock, and barrel,” “making a mountain out of a molehill,”
Hate Expletives: “Expletive” means “filled out” in Latin. Avoid expletives: “there are,” “there is,” “there were,” “there was,” “there to be,” “it is,” and “it was.” Examples: “There are three issues in this case.” Becomes: “This case has three issues.” “There is no fact that is more damaging.” Becomes: “No fact is more damaging.” “The court found there to be prosecutorial misconduct.” Becomes: “The court found prosecutorial misconduct.
Hate Pomposity: Be formal but not over the top. Stay away from IQ or SAT words. No one will be impressed. You’ll look bovine, fatuous, and stolid, not erudite, perspicacious, and sagacious. The fewer syllables in a word, the better. Prefer simple and short words to complex and long words “Adjudicate” becomes “decide.” “Aggregate” becomes “total.” “Ameliorate” becomes “improve” or “get better.” “As to” becomes “about” or “according to.” “At no time” becomes “never.” “Attain” becomes “reach.” “Commence” becomes “begin” or “start.”
Hate Incorrect Tenses: Mismatched tenses confuse readers. State current rules in the present tense, past rules in the past tense, and past facts in the past tense. Past fact but current rule: “The court held in Alpha v. Zeta that statutory rape is illegal even if the victim consents.” Past fact and past rule: “Until the court reversed Zeta v. Alpha, the rule was that . . . .” Past fact: “The defendant ran the red light.” (Not “runs.”) Past but still-valid rule: “This court has held that . . . .” Past fact, permanent truth in dependent clause:
Hate Redundancies: Redundancy is the unnecessary repetition of words or ideas. “Advance planning” becomes “planning.” “Adequate enough” becomes “adequate.” “Any and all” becomes “any.” “As of this date” becomes “today.” “At about” becomes “about.” “At the present time” becomes “now.” “At the time when” becomes “when.” “By the time” becomes “when.” “Complete stop” becomes “stop.” “During the time that” becomes “during.”
Keep sentences short: Concision is a mark of confidence, a hallmark of the best legal writing, and many judges wholeheartedly agree. Keep it short, not just sentences, which should average about 25 words, but also paragraphs, which should measure about half a page. When you write about complex subjects, push the length down: “The basic rule is this:
The more complicated your information is, the shorter your sentences should be.”
Incorporate Gender Free writing: Adopt a “gender-free” style of writing – one that avoids the pronouns entirely. This leads to clarity, gender balance and professionalism. For many, the masculine pronouns embrace all entities and using “he” and “his” is acceptable and appropriate. Others challenge this view, suggesting that the use of the masculine pronouns in general statements involves unsustainable assumptions about the legal system and those who interact with it. They would advocate moving toward a style of writing that does not involve such assumptions – a style sometimes referred to as “gender neutral.”
These are the first steps towards better legal writing and are by no means the only steps. I therefore encourage all Law students, Lawyers, Judges and other legal writers to incorporate these and source for more ways to improve their writing.
This Piece is written by Olukowi Ololade