One of the biggest challenges in my work is to take complex, and often convoluted, legal texts and translate them into “plain words.” And if you look across the legal help wanted ads, you’ll see similar requests to “not speak like a lawyer.”
Being “not a lawyer” is harder than it looks
Whatever “not a lawyer” language looks like, lawyers still suck at making it happen. I think the problem stems partially from our inability to “not sound smart,” and because of our training.
Much like other first year students, I spent 3 hours per week learning the art of legal writing and research. “LRW” focused on studying and performing the nuances of The Bluebook. Unfortunately — and this is where the real shame in legal education comes — we didn’t focus any of those efforts on actually reading or viewing the works of great legal authors. So like every other newly-minted lawyer before me, I looked for examples from other lawyers who are willing share their works. And because I (and others) don’t know any different — i.e. we believe the document must look and sound some particular way in order for it to be “legal” — we perpetuate poor legal writing through our careers.
The idea of “not sounding smart,” or not sounding “legal” enough, further diminishes the quality of our legal writing. Personally, I’m a little too fearful — because of experience and training, perhaps — that the missing “Whereas” or “heretofore” will have catastrophic implications on the overall success of my pleading, contract, or other document. In essence, I’ve created a perception about the way I believe legal writing should look, that changing my writing style becomes even more difficult.
In re: plain language
The idea of “plain language” in legal writing isn’t new or novel. “Plain language” involves typography — breaking the font and style mold — and the actual prose used to form the document. Shawn Burton, a general counsel at GE, discussed the revamp of GE’s contracts to plain language. The post highlights the difficulties his team had in moving from “traditional” language to “plain” language, and includes some key pointers for others looking to make the same change: be patient; get smart; measure your speed; and be persistent. From their before and after examples, the GE team did well to create a language contract.
Language in the indemnification clause of a services contract was revised to be clearer and much more concise:BEFORE
Customer shall indemnify, defend, and hold Company harmless from any and all claims, suits, actions, liabilities, damages and costs, including reasonable attorneys’ fees and court costs, incurred by Company arising from or based upon (a) any actual or alleged infringement of any United States patents, copyright, or other intellectual property right of a third party, attributable to Customer’s use of the licensed System with other software, hardware or configuration not either provided by Company or specified in Exhibit D.3, (b) any data, information, technology, system or other Confidential Information disclosed or made available by Customer to Company under this Agreement, (c) the use, operation, maintenance, repair, safety, regulatory compliance or performance of any aircraft owned, leased, operated, or maintained by Customer of (d) any use, by Customer or by a third party to whom Customer has provided the information, of Customer’s Flight Data, the System, or information generated by the System.AFTER
If an arbitrator finds that this contract was breached and losses were suffered because of that breach, the breaching party will compensate the non-breaching party for such losses or provide the remedies specified in Section 8 if Section 8 is breached.
After reading Shawn’s post, I came across this post from Ross Guberman — note that Ross is writing to share his software program, and this is not an endorsement, but his program looks cool — which discusses Justice Elena Kagan’s excellent writing style. Ross gives five keys from Justice Kagan’s opinions that he believes every legal writer should follow:
- Light is right — discard “wordy” language in favor of modern usage.
- “I hear you” — imagine your audience knows nothing about the subject, and write to that audience; address the audience directly and conversationally.
- Spice it up — basically, give your writing a “beat” and make the writing fun to read.
- Let it flow — use transitions, but not “normal” transitions like “additionally,” “moreover,” or “consequently.”
- Parenthetical pleasures — make your parenthetical citations more visually appealing by using a participle “that reflects something that courts do rather than something about the parties or about the case itself.”
Boost your own appeal
The suggestions from Shawn and Ross are a few new tools that you can use to boost the appeal of your own legal writing. More importantly, using plain language in your own legal documents will help your readers follow your persuasive arguments.
Photo: Day 146: The end of the line | Bruce Guenter via Flickr