GPSOLO April/May 2009
In law school, I don’t remember any professor telling us to “write like a lawyer.” Maybe “think like a lawyer,” but not write like one: Take all verbs out of your sentences; make every sentence at least 200 words, with as many clauses as possible; have your paragraphs go on from page to page; use words and phrases such as pursuant to, whereas, heretofore, prior to, and provided that. And of course use two, and perhaps three or four, words when one would do: rest, residue, and remainder; free and clear; null and void.
None of these lawyerisms are necessary, and all are distracting and confusing—not only to laypeople, but also to judges and lawyers.
The problem is that we read cases by old dead judges who were not good writers when they were alive. Certainly, there were good judicial writers—Holmes, Cardozo, Jackson—but they did not write on every issue to be covered in a casebook. So the casebook editor had to pick dull cases. And even after editing, they were still badly written.
So we read stilted, backward, and downright clumsy language that had been passed down for generations—and internalized it. When we got out of law school, we thought that’s how judges and lawyers write, so I should write that way, too. Thus the tradition of bad legal writing continued.
Too Long Words
We tend to use a longer, more formal word when a shorter one would do better: subsequent rather than after, pursuant to rather than under, provided rather than if.
Here, there, or where do not take any extra letters. Hereinafter, therein, whereas, wherein, and the like should be banned.
And we use phrases when one word would do: in possession of for possess; adequate number of for enough; make an examination of for examine. Always question these phrases: in order to is just to, and by means of is by.
Too Many Words
It’s not just long words—we use way too many words.
Has anyone ever come to your office seeking a will and testament? Are they two things? And did they then say, “I would like to give the rest of my estate to my spouse, the residue to my daughter, and the remainder to my son”? Would that be possible? Of course not—they are the same thing, so why do we use three words?
The same goes for null and void, goods and chattels, free and clear. These were couplets in Norman French and Old English.
The explanation of why we started doing this is too long for this article, but you can read a shorthand version in Kohlbrand v. Ranieri, 823 N.E.2d 76. It has something to do with the Norman Conquest—we have been perpetuating this foolishness since shortly after 1066. It’s time to stop. The rest of the estate is enough, as is clear title. If anyone tells you these words have different meanings, they are just wrong. (There are a few that are not couplets but separate issues: joint and several, for instance. They are the exception and are easy to spot.)
Too Many Dates
Lawyers and judges use too many dates. Using an exact date signals to the reader that it is important—that the reader should remember it for future reference. If that’s not your intention, strike it out. Most dates are clutter and make our writing very difficult to read.
You can convey continuity and order by clues like next and later. Or use in June then in July to show chronological order.
My rule is that if you use an exact date, you must have a good reason.
A few tips for dates: When using month-day-year style, there is a comma before and after the year: “The ceremony of June 26, 2003, was festive.” In the day-month-year style (more prevalent in Commonwealth and European writing), there is no comma: “The ceremony of 26 June 2003 was festive.” And remember that when an exact date is not used, there is no comma between the month and year: in June 2003.
To refer to decades, do not use an apostrophe— during the 1980s not 1980’s. Actually, either is acceptable; but the modern rule, which produces cleaner-looking text, is to leave out the apostrophe.
Do not write filed a motion unless the filing itself has some significance. Filed a motion conjures up in readers’ minds someone walking up to the clerk’s counter and having a pile of papers stamped. Write moved. “Smith moved for summary judgment.”
Nominalization is taking a perfectly good verb, such as examine, and turning it into a noun, examination. Then you need a verb, which is always a weak one, in this case make. Make an examination of is four words, three of them useless.
In the sidebar below are some common nominalizations. See how many words you can save by turning them back into verbs (and you gain clarity in the process).
The preposition of is sometimes a marker for nominalizations. Always question any ofs in your writing—they may mark not only nominalization, but also false possessives.
Write Ohio Supreme Court, not Supreme Court of Ohio. There is nothing wrong with the possessive. Write the court’s docket, not the docket of the court. Recently I read upon motion of Harmon. Why not on Harmon’s motion? Somewhere, someone told lawyers not to use possessives, maybe because docket of the court sounds more formal. Or maybe we got confused by someone banning contractions from legal writing (another error), and the possessive apostrophe got unjustly maligned. Whatever the error’s genesis, the of construction is clutter—and much harder to read.
Many times we just write redundancies: a distance of five miles equals five miles (five miles is a distance); a period of a week equals a week (a week is a period). Only write during the month of May if you have a poetic license and insert merry, merry before month.
Words and Numbers
We clutter our documents with redundant numbers: “There are four (4) plaintiffs and six (6) defendants, all claiming the ten thousand dollars ($10,000). But only three (3) of the four (4) plaintiffs are entitled to recover from one (1) defendant.”
Utter nonsense. Bryan Garner, the guru not only of legal writing but also of all American writing, calls this a “noxious habit.”
Many legalisms once had a purpose—and the purpose has long since evaporated, but we keep the legalisms. That’s the case with these parenthetical numericals.
In Dickens’s time, writing was difficult—physically. Quill pens were hard to use. Use too much ink and it dripped; use too little and words weren’t clear. And penmanship really mattered. If a promissory note for 400 pounds could be changed to 500 by dotting the top of the u in the four and putting a squiggle on the end to make an e, then 500 pounds might be owed. To prevent this, scribes started using a parenthetical numerical: (£400).
But it is unlikely that our laser printers—or even typewriters—will confuse four with five, or $400 with $500. So for at least 100 years, there has been no reason for this practice, but inertia carries it forward. Even though we don’t know why, we keep doing it.
And it spills over into other areas. See, for example, the coupon pictured in Figure 1. We can guess how this happened. The ad department probably had to “run it by legal.” The legal department, being composed of lawyers, inserted the parenthetical for no reason other than that’s what lawyers do. I guess the checkout person wouldn’t take the coupon otherwise. But Figure 2 shows a coupon that doesn’t have the noxious parenthetical!
At my seminars, I will usually have someone who says something such as, “I have a really big deal, so I want to use the ‘belt and suspender’ approach and do both words and numbers.” That is asking for trouble. When they don’t match, what controls? The words. What’s much more likely to be correct? The numbers, because they are easier to proofread. Three million, nine hundred forty-three thousand, two hundred fifty dollars is much harder to write and proof than $3,943,250.
There is never a reason to use parenthetical numericals—unless you are making a lawyer joke.
One final tip: do not use . 00 if there are no cents involved. And use all numbers for anything over ten.
But of Course Start Sentences with And and But
And do not be afraid to start sentences with and or but. This signifies good writing. The reason your grammar-school teacher told you not to start a sentence with and was because you wrote, “I have a mother. And a father. And a dog.” The last two weren’t sentences.
Use but rather than however to start a sentence, and see how much better it reads.
Almost any example of good writing pulled at random will contain numerous examples. The Wall Street Journal and The New York Times are well written—look at the front page of either and circle the number of sentences beginning with and or but. Pick up any work by a good writer, and you will find countless examples (see the sidebar below).
Many word-processing programs can compute the “readability” level of your writing. In Microsoft Word, for instance, go under the “Tools” menu, then choose “Options,” then “Spelling & Grammar,” then check the box next to “show readability statistics.” The stats are not perfect, but a helpful guide. I try to aim my opinions at the 11th grade or lower. This article is grade 6.9.
In the examples below I show how lawyers and judges usually write—and a fix. In both cases, I have indicated the number of words, grade level, and overall readability score:
- Due to the fact that the plaintiff-appellant had up to this point in time supplied an insufficient number of widgets, the defendant-appellee specified that, in the event that an insufficient number was supplied in the future, the contract would be held to be terminated, and deemed to be null and void and of no further effect.
(56 words; grade level 24; readability 21)
- Because Smith had not supplied enough widgets, Jones said that, if this happened again, Jones would terminate the contract.
(19 words; grade level 10; readability 54)
Which would you rather read?
Nominalizations vs. Verbs
|performed a search on||searched|
|placed a limitation upon||limited|
|made an examination of||examined|
|provided protection to||protected|
|reached a resolution||resolved|
|revealed the identity of||identified|
|made mention of||mentioned|
|were in compliance||complied|
|was in conformity with||conformed|
|entered a contract to||contracted, agreed|
|filed a counterclaim||counterclaimed|
|filed a motion||moved|
|filed an application||applied|
|was in violation of||violated|
Starting Sentences with And and But
Oliver Wendell Holmes
Courts proceed step by step. And we now have to consider whether the cautious statement in the former case marked the limit of the law. . . .
Robert H. Jackson
But we think the previous cases indicate clearly that respondents are within the Act.
Hence it is an unjustifiable interference with a natural right. And this is exactly what the court said in an actual case.
But I am very sorry, good Horatio
He had grown up associating religion with the self-delusion and aimlessness of adults. But now he thought about the soul, his soul. Or he tried to. But it was only a word!
But it was not for him, not yet. The humility was there; he had learned that. And he could learn patience.
But it would be silly to wear clothes in the rain. You didn’t wear clothes in the shower. If it rained, you would take off your clothes. That would be the only thing that made sense.
Mark P. Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 14 years on the Hamilton County Municipal Court. An internationally recognized authority on legal writing, Judge Painter is the author of 385 nationally published decisions, 120 legal articles, and six books, including T he Legal Writer: 40 Rules for the Art of Legal Writing (available at http://store.cincybooks.com). Contact him through his website, www.judgepainter.org.