Good Legal Writing

You've heard about it, you've seen it, and-gasp!-you might have written some of it yourself.

It may even have been what drove Dutch humanist Desiderius Erasmus to write, "Amongst the learned the lawyers claim first place, the most self-satisfied class of people, as they roll their rock of Sisyphus and string together six hundred laws in the same breath, no matter whether relevant or not, piling up opinion on opinion and gloss on gloss to make their profession seem most difficult of all..."

"It" is legalese-the needlessly complicated, always confounding language of lawyers. But this Byzantine style of writing now has a growing enemy-from, of all places, inside the legal community-called the plain English movement.

One proponent of plain English, corporate attorney George Hathaway, says that lawyers use legalese on purpose, "for prestige and client control." Hathaway, chair of the State Bar of Michigan's Plain English Committee since 1983 and a senior real estate attorney in Detroit Edison's legal department, has more than a few ideas on the subject, having published nearly 100 articles on legal writing in the past 10 years.

How do you define legalese?
"Legalese has four elements, as defined in David Mellinkoff's Legal Writing: Sense and Nonsense: formalisms, such as now comes; archaic words, such as hereby; redundancies, such as each and every; and Latin words, such as per curiam."

"There are also four elements of poor writing in general, which I call gobbledegook: long sentence length, weak passive verbs, wordy phrases and unnecessarily long words. If you pick up any English textbook, you will see, 'Write under rather than pursuant to. Write if rather than in the event of.' But when you look at documents written by practicing lawyers or even at state statutes, all you see is pursuant to."

"If lawyers would eliminate the legalese and the gobbledegook from their writing, they would eliminate eight major elements of unclear writing. Show me a document from which those eight elements have been eliminated, and I will show you a clearly written document. Look at the opinions of [U.S. Supreme Court Justice Oliver Wendell] Holmes. Good, clear writing has always been promoted, but in the day-to-day practice of law, it is rarely executed."

Why is that?
"On one hand, you have the academic world teaching lawyers how to write plain English; on the other, you have the practicing world of lawyers who know how to write plain English but continue legalese on purpose. It's a mixed message, much the same as when you open a magazine and see two conflicting ads-one for Weight Watchers and one for some luscious fattening dessert. Which one would you pick?"

"If you go to most lawyers and say, 'I notice you used the word hereby in the order you wrote for a judge to sign. That's legalese isn't it?' They will say yes. But if you add, 'The state bar has asked lawyers to write clearly, so would you take hereby out of the orders that you write from now on?' they will tell you no."

What can a law student do to avoid the legalese trap?
"Law students usually write well, but when they get into actual practice, they switch. A fine example is the word hereby. You would be amazed at how many law students know they should not use the word hereby when writing their brief for a legal writing class; when they get out into practice, however, there are 49 other types of documents, and in those 49 other documents, they usually use the word hereby."

"I would say this to law students: When you get into practice, you will come to a crossroads. Will you continue the clear writing you have been taught in legal-writing classes, or will you start using the legalese forms used by many practicing lawyers? I say, you have to bite the bullet."

To read four of Hathaway's Michigan Bar Journal articles on the plain English movement, access the Michigan Bar Journal database (MIBJ) and type au(hathaway) & "plain english".

Each annual volume of The Scribes Journal of Legal Writing presents the State Bar of Texas' "Legaldegook Awards" for "the most delightfully atrocious examples of legal writing."

A "Legaldegook" Winner: For example, the 1993 "Plastic Surgeons' Lobby Award" (for a surprising instance of legislatively coerced surgery) goes to this gem from the Texas Penal Code Annotated § 46.05: "A person commits an offense if he intentionally or knowingly possesses ... knuckles." (To retrieve this statute on Westlaw, access the Texas Statutes-Annotated database (TX-ST-ANN) and type ci(46.05) & knuckle.

Elements of Good Writing
What do other legal writers advise when it comes to legal writing? To find out, access the Texts & Periodicals-All Law Reviews, Texts & Bar Journals database (TP-ALL) and type ti("legal writing").