Inclusion in Legal Writing: A Practitioner’s Guide

As lawyers, our words are our craft. Although lawyers’ verbal skills are often at the forefront of popular culture, written skills are arguably more important. Writing skills transcend all areas of practice. How you write can enhance credibility and ensure the best advocacy for a client. In addition to the mechanics and technical skills learned in law school, writing is an art that requires focus and practice. Language evolves, and over time, words and phrases become outdated. In the same way that we must remain up to date with the law in our fields, we also must keep up with changing trends in writing.

As new lawyers, it is essential to hone your writing skills as early as possible. Although starting out in practice comes with a learning curve, focusing on writing can help perfect your skills and accelerate your proficiency in the craft. One area that you may not immediately consider is how to ensure inclusivity in your writing. The following five tips will help you be inclusive in your legal writing.

1. Be Person-Centric

Whether you are deciding how to refer to a person’s gender, race, ethnicity, ability, sexual orientation, or any other personal identity, remember always to put the person first. For example, rather than labeling a person as “an addict,” you could describe someone who has an addiction to something. Or you may specify a person with diabetes rather than saying someone is “a diabetic.”

2. Drop a Footnote

At times statutes or case law may use outdated language. Rather than perpetuate the use of outdated words, use a more appropriate word, and include a footnote explaining why you are using it. For example, “alienage” is a common term with legal meaning, but colloquially referring to people as “aliens” is inappropriate. Instead, choose another way to refer to the person, such as “asylum-seeker,” “refugee,” or refer to the person’s country of citizenship rather than emphasizing that a person is not a citizen of the United States.

3. Read and Ask

In the same way that lawyers read new law, they should also read about trends in legal writing. This could include trends in citation usage, or it could include the proper way to refer to a person who is non-binary in legal pleadings. If you are unsure about something, the best advice is always to ask because the profession is one of life-long learning. If you are referring to your client in a written document, ask them precisely how they want you to refer to them. You may ask seasoned legal writers, or you may want to ask a non-lawyer who works in one of the respective areas about your options.

4. Seek Feedback

Have other professionals review your work. Getting various perspectives on a piece of writing is a great way to ensure your own unconscious biases are not seeping into a document through your words. Request feedback early and indicate when you need the document returned. Because most lawyers are very busy, this information will allow someone to determine if they can provide feedback before your deadline.

5. Dig Below the Surface

Many commonly used words and phrases are rooted in historical exclusion. Here are a few words to look out for but be assured that there are many more. (Definitions are from Merriam-Webster.)

Gender

• Hysterical: “Feeling or showing extreme and unrestrained emotion.” The term originates from the Greek language, where it was a medical diagnosis meaning “suffering in the womb” and was only applicable to women.
• Seminal: “Contribut[ing] to the seed of later development; of, relating to, or consisting of semen,” and is often used to describe foundational cases.

LGBTQ+ and Gender

• Husband/Wife: “A male or female partner in a marriage,” respectively. A husband is defined as “a frugal manager; to manage prudently and economically.” There are historical inherent ownership properties in these terms.
• Maiden Name: “The surname of a married or divorced woman prior to marriage.” This term implies traditional marriage between heterosexual and cis-gendered people.

Race and Gender

• Grandfathered/Grandfather Clause: “A clause creating an exemption based on circumstances previously existing[.]” This kind of clause was used specifically in the 1800s in southern states to disenfranchise Black communities.
• Master: “A male teacher; one having authority over another; a person who holds another person in slavery; the male head of a household; to become skilled or proficient in the use of” and is often used to describe becoming proficient at a skill.

Inclusivity in writing is one way to exercise integrity and demonstrate professionalism, making you a better advocate for your clients and strengthening society’s trust in the legal profession. Putting people above labels refocuses attention on behavior instead of personal identities such as race, gender, sexual orientation, ethnicity, religion, and abilities. Whether you are a new lawyer or have been a lawyer for decades, the art of legal writing is essential to practicing law; thus, honing these skills early is vital to a successful and fulfilling career.