4. Plain English for Lawyers

By Richard C. Wydick


Source: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2362&context=californialawreview

Note: The Footnotes and Appendixes are omitted.


 

We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that has, according to one critic, four outstanding characteristics. It is: “(1) wordy, (2) unclear, (3) pompous, and (4) dull.”

Criticism of lawyers’ writing is nothing new. In 1596 an English chancellor decided to make an example of a particularly prolix document filed in his court. The chancellor first ordered a hole cut through the center of the document, all 120 pages of it. Then he ordered that the person who wrote it should have his head stuffed through the hole, and the unfortunate fellow was led around to be exhibited to all those attending court at Westminster Hall.

When the common law was transplanted to America, the writing style of the old English lawyers came with it. In 1817 Thomas Jefferson lamented that in drafting statutes his fellow lawyers were accustomed to “making every other word a ‘said’ or ‘aforesaid,’ and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means. ….”

In recent times criticism of lawyers’ writing has taken on a new intensity. The popular press castigates lawyers for the “frustration, outrage, or despair” a consumer feels when trying to puzzle through an insurance policy or installment loan agreement. President Carter has ordered that new regulations of the federal executive agencies must be “written in plain English” that is “understandable to those who must comply” with them.’ A recently enacted New York State statute requires consumer contracts to be written “in a clear and cogent manner using words with common and everyday meanings.” Within the legal profession itself, the criticism has mounted. Attorney Ronald Goldfarb charges that, by writing as we do, we “unnecessarily mystify our work, baffle our clients, and alienate the public. We could change this, and we should.” The need for change is magnified by innovations in the mechanics of lawyering. We now have word processing machines that can type old boilerplate at a thousand words per minute and computer research systems that can give us an instant concordance of all the outpourings of appellate courts, legislatures, and governmental agencies. Soon we may drown in our own bad prose.

A well-known New York lawyer tells the young associates in his firm that good legal writing does not sound as though it had been writ- ten by a lawyer. In short, good legal writing is plain English. Here is an example of plain English, the statement of facts from the majority opinion in Palsgrafv. Long Island Railroad Co.written by Benjamin Cardozo:

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.

What distinguishes Justice Cardozo’s style from that found in most legal writing? Notice his economy of words. He does not say “despite the fact that the train was already moving” – he says “though the train was already moving.” Notice his choice of words. There are no archaic lawyerly phrases, no misty abstractions, no hereinbefore’s. Notice his care in arranging words. There are no wide gaps between the subjects and their verbs or between the verbs and their objects, and there are no ambiguities to leave us wondering who did what to whom. Notice his use of verbs. Most of them are in simple form, and all but two are in the active voice. Notice the length and construction of his sentences. Most of them contain only one main thought, and they vary in length: the shortest is six words, and the longest is twenty-seven words.

These and other elements of plain English style are discussed in this article. Readers are urged to work the exercises in Appendix A and to compare their work with the suggestions contained in Appendix B.

I

OMIT SURPLUS WORDS

As a beginning lawyer, I was assigned to assist an older man, a business litigator. He hated verbosity. When I would bring him what I thought was a finished piece of writing, he would read it quietly and take out his pen. As I watched over his shoulder, he would strike out whole lines, turn clauses into phrases, and turn phrases into single words. One day at lunch I asked him how he did it. He shrugged and said: “It’s not hard-just omit the surplus words.”

A. How to Spot Bad Construction

In every English sentence are two kinds of words: working words and glue words. The working words carry the meaning of the sentence. In the preceding sentence the working words are these: working, words, carry, meaning, and sentence. The others are glue words: the, the, of, and the. The glue words do serve a purpose; they hold the working words together to form a proper English sentence. But when you find too many glue words, it is a sign that the sentence is badly constructed. A good sentence is like fine cabinetwork: the pieces are cut and shaped to fit together with scarcely any glue. When you find too many glue words in a sentence, take it apart and reshape the pieces to fit tighter. Consider this example:

A trial by jury was requested by the defendant.

If the working words are circled the sentence looks like this:

trial by jury was requested by the defendant.

Five words in that nine word sentence are glue: a, by, was, by, and the.

How can we say the same thing in a tighter sentence with less glue? First, move defendant to the front and make it the subject of the sentence. Second, use jury trial in place of trial by jury. The sentence would thus read:

The defendant requested a jury trial.

If the working words are circled, the rewritten sentence looks like this:

The defendant requested a jury trial.

Again there are four working words, but the glue words have been cut from five to two. The sentence means the same as the original, but it is tighter and one-third shorter.

Here is another example:

The ruling by the trial judge was prejudicial error for the reason that it cut off cross-examination with respect to issues which were vital.

If the working words are circled, we have:

The ruling by the trial judge was prejudicial error for the reason that it cut off cross-examination with respect to issues which were vital.

In a sentence of twenty-four words, eleven carry the meaning and thirteen are glue.

Note the string of words the ruling by the trial judge. That tells us that it was the trial judge’s ruling. Why not just say the trial judge’s ruling? The same treatment will tighten up the words at the end of the sentence. Issues which were vital tells us they were vital issues. Why not say vital issues? Now note the phrase for the reason that. Does it say any more than because? If not, we can use one word in place of four. Likewise, with respect to can be reduced to on. Rewritten, the sentence looks like this:

The trial judge’s ruling was prejudicial error because it cut off cross-examination on vital issues.

Here it is with the working words circled:

The trial judge’s ruling was prejudicial error because it cut off cross-examination on vital issues.

The revised sentence uses fifteen words in place of the original twenty- four, and eleven of the fifteen are working words. The sentence is both tighter and stronger than the original.

Consider a third example, but this time use a pencil and paper to rewrite the sentence yourself.

In many instances, insofar as the jurors are concerned, the jury instructions are not understandable because they are too poorly written.

Does your sentence trim the phrase in many instances? Here the single word often will suffice. Does your sentence omit the phrase insofar as the jurors are concerned? That adds bulk but no meaning. Finally, did you find a way to omit the clumsy because clause at the end of the sentence? Your rewritten sentence should look something like this:

Often jury instructions are too poorly written for the jurors to understand.

Here it is with the working words circled:

Often jury instructions are too poorly written for the jurors to understand.

The rewritten sentence is nine words shorter than the original, and nine of its twelve words are working words. (See Exercise 1, Appendix A.)

B. Avoid Compound Prepositions

Compound prepositions and their close cousins are a fertile source of surplus words. They use several words to do the work of one or two, and they suck the vital juices from your writing. You saw some examples in the last section. With respect to was used instead of on. Fort he reason that was used instead of because.

Every time you see one of these pests on your page, swat it. Use a simple form instead. Here is a list of common ones:

COMPOUND SIMPLE
at that point in time then
by means of by
by reason of because of

by virtue of by, under
for the purpose of to
for the reason that because
from the point of view of from, for
in accordance with by, under
inasmuch as since
in connection with with, about, concerning
in favor of for
in order to to
in relation to about, concerning
in terms of in
in the event that if
in the nature of like
on the basic that by, from
prior to before
subsequent to after
with a view to to
with reference to about, concerning
with regard to about, concerning
with respect to on, about

(See Exercise 2, Appendix A.)

 

C. Trim Out Verbose Word Clusters

Once you develop a dislike for surplus words, you will find many common word clusters that can be trimmed from your sentences with no loss of meaning. Consider this example:

The fact that the defendant was young may have influenced the jury.

What meaning does the fact that add? Why not say:

The defendant’s youth may have influenced the jury.

The fact that is almost always surplus. See how it can be trimmed from these examples:

VERBOSE PLAIN
the fact that she had died her death
he was aware of the fact that he knew that
despite the fact that although, even though
because of the fact that because

 

Likewise, the words case and instance spawn verbosity:

VERBOSE PLAIN
in some instances the parties can sometimes the parties can
in many cases you will find often you will find
that was an instance in which the court there the court
discrimination claims are more frequent than was formerly the case discrimination claims are more frequent now
injunctive relief is required in the case of injunctive relief is required when 
in the majority of instances the landowner has usually the landowner has
it is not the case that she wrote the letter she did not write the letter

 

Here are other examples of common word clusters you can eliminate with no loss of meaning:

VERBOSE PLAIN
during the time that during, while
for the period of for
in accordance with by, under
insofar as … is concerned (omit entirely and start with the subject)
there is no doubt but that doubtless, no doubt
the question as to whether whether, the question whether
this is a topic that this topic
until such time as until

(See Exercise 3, Appendix A.)

 

D. How to Shorten Clauses and Phrases


One remedy for rambling sentences is to cut clauses down to phrases. Here is an example:

While the trial was in progress, the judge excluded photographers from the courtroom.

The six word clause at the beginning can be cut to a three word phrase:

During the trial, the judge excluded photographers from the courtroom.

The words which, who, and that often signal an opportunity to reduce a clause to a phrase:

CLAUSE PHRASE
The question was designed to impeach the prosecution witness, who had been convicted of having committed a felony. The question was designed to impeach the prosecution witness, a convicted felon.
The statute, which had been enacted after the Alyeska case, authorized the fee award. The statute, enacted after the Alyeska case, authorized the fee award.
The title search did not disclose the easement that had been granted six years before. The title search did not dis- close the easement granted six years before.

 

When you see the words it is and there are, stop to see if you can replace a clause by a shorter construction:

VERBOSE PLAIN
There are three key paragraphs in the pretrial order. The pretrial order has three key paragraphs.
It is possible for the court to take judicial notice of its own records. The court can take judicial notice of its own records.
Despite the legislative history, there are doubts about the intent of Congress. Despite the legislative history, the intent of Congress is in doubt.

 

Sometimes you can clean out surplus words by replacing a clause with an adjective or adverb:

VERBOSE PLAIN
The trial judge denied the defendant’s motion, which asked for summary judgement. The trial judge denied the defendant’s summary judgment motion.
The plaintiff rejected the offer made by the defendant to settle the case for $10,000. The plaintiff rejected the defendant’s $10,000 settlement offer.
The decree which was entered in January ordered payments to be made each month for child support. The January decree ordered monthly child support payments.

 

E. Do Not Use Redundant Legal Phrases

Why do lawyers use the term null and void? According to the dictionary, either null or void by itself would do the job. But the lawyer’s pen seems impelled to write null and void, as though driven by primordial instinct. An occasional lawyer, perhaps believing that null and void looks naked by itself, will write totally null and void, or perhaps totally null and void and of no further force or effect whatsoever.

Null and void is a lawyer’s tautology – a needless string of words with the same or nearly the same meaning. Here are other common examples:

alter or changecease and desistconfessed and acknowledgedconvey, transfer, and set overfor and during the periodforce and effectfree and clearfull and completegive, devise, and bequeathgood and sufficientkind and character last will and testamentmade and entered intoorder and directperform and discharge
rest,residue, and remaindersave and exceptsuffer or permittrue and correctundertake and agreeunless and until

Lawyer’s tautologies have ancient roots. Professor Mellinkoff explains that, at several points in history, the English and their lawyers had two languages to choose from: first, a choice between the language of the Celts and that of their Anglo-Saxon conquerors; later, a choice between English and Latin; and later still, a choice between English and French. Lawyers started using a word from each language, joined in a pair, to express a single meaning. (For example, free and clear comes from the Old English freo and the Old French cler.) This redundant doubling was used sometimes for clarity, sometimes for emphasis, and sometimes just because it was the fashion. Doubling became traditional in legal language and persisted long after any practical purpose was dead.

Ask a modem lawyer why he or she uses a term like suffer or permit in a simple real estate lease. The first answer likely will be: “for precision.” True, there is a small difference in meaning between suffer and its companion permit. But suffer in this sense is now rare in ordinary usage, and permit would do the job if it were used alone.

The lawyer might then tell you that suffer or permit is better because it is a traditional legal term of art. Traditional it may be, but a term of art it is not. A term of art is a short expression that (a) conveys a fairly well-agreed meaning, and (b) saves the many words that would otherwise be needed to convey that meaning. Suffer or permit fails to satisfy the second condition, and perhaps the first as well. The word hearsay is an example of a true term of art. First, its core meaning is fairly well-agreed in modem evidence law, although its meaning at the margin has always inspired scholarly debate. Second, hearsay enables a lawyer to use one word instead of many to say that a statement is being offered into evidence to prove that what it asserts is true, and that the statement is not one made by the declarant while testifying at the trial or hearing. Any word that can say all that deserves our praise and deference. But suffer or permit does not.
In truth, suffer or permit probably found its way into that real estate lease because the lawyer was working from a form that had been used around the office for years. The author of the form, perhaps long dead, probably worked from some even older form that might, in turn, have been inspired by a formbook or some now defunct appellate case where the phrase was used but not examined.
If you want your legal writing to have a musty, formbook smell, by all means use as many tautological phrases as you can find. If you want it to be crisp, do not use any. When one looms up on your page, stop to see if one of the several words, or perhaps a fresh word, will carry your intended meaning. You will find, for example, that the phrase last will and testament can be replaced by the single word will.”

This is not as simple as it sounds. Lawyers are busy, cautious people. The redundant phrase has worked in the past; a new one might somehow raise a question. To check it in the law library will take some time. But remember-once you slay one of these old monsters, it will stay dead for the rest of your career. If your memory is short, keep a card file of slain redundancies. Such trophies distinguish a lawyer from a scrivener. (See Exercise 5, Appendix A.)

II

USE FAMILIAR, CONCRETE WORDS

Here are two ways a lawyer might write to a client to explain why the lawyer’s bill is higher than the client expects.

Example One: The statement for professional services which you will find enclosed herewith is, in all likelihood, somewhat in excess of your expectations. In the circumstances, I believe it is appropriate for me to avail myself of this opportunity to provide you with an explanation of the causes therefor. It is my considered judgment that three factors are responsible for this development. Primary among them is the mutually unanticipated expenditure of time which is being necessitated by the litigation involved herein. To wit, the counsel retained on behalf of the several parties defendant is endeavoring, perhaps in emulationem vicini, to effect depletion of our resources and destruction of our morale by undertaking deposition proceedings with the purpose of obtaining testimony from numerous deponents whose factual knowledge with respect to the instant litigation is negligible at best ….

Example Two: The bill I am sending you with this letter is probably higher than you expected, and I would like to explain the three reasons why. First, the case is taking more time than either you or I expected. The defendants’ lawyer, perhaps driven by spite, is trying to wear us down by taking the pretrial testimony of many persons who know little, if anything, about the facts ….

Example Two is better, is it not? Look at the choice of words in Example One. Why does its author say statement for professional services instead of bill? The client calls it a bill. So does the lawyer, usually. By tradition, the bill itself can be captioned statement for professional services. But this is supposed to be a friendly, candid letter to a client: let us call a bill a bill.

Look at the words that give Example One the stink of old law books: herewith, therefor, herein, several parties defendant, to wit, and in emulationem vicini. None of them is necessary here, if indeed they are necessary at all in a modem lawyer’s vocabulary. Look at the airy, abstract words: circumstances, factors, development. What do they add here? Finally, look at the number of times Example One uses ponderous phrases instead of the familiar, simple words used in Example Two:

EXAMPLE ONE EXAMPLE TWO
in all likelihood probably
in excess of your expectations higher than you expected
explanation of the causes explain why
mutually unanticipated expenditure of time more time than you or I expected
counsel retained on behalf of the several parties defendant defendants’ lawyer
endeavoring to effect depletion of our resources and destruction of our morale trying to wear us down
numerous deponents many persons
factual knowledge. . . is negligible know little, if anything

A. Use Concrete Words

To grip and move your reader’s mind, use concrete words, not abstractions. To see the difference, suppose that Moses’s plagues on Egypt had been described in the language of a modem environmental impact report:

EXODUS 8:7 ALTERED VERSION
[A]s the Lord commanded…
he lifted up the rod and smote the waters of the river. . . and all the waters that were in the river were turned to blood. And the fish that were in the river died; and the river stank, and the Egyptians could not drink the waters of the river, and there was blood throughout all the land of Egypt. In accordance with the directive theretofore received from higher authority, he caused the implement to come into con- tact with the water, whereupon a polluting effect was perceived. The consequent toxification reduced the conditions necessary for the sustenance of the indigenous population of aquatic vertebrates below the level of continued viability. Olfactory discomfort standards were substantially exceeded, and portability declined. Social, economic and political disorientation were experienced to an unprecedented degree.

 

The lure of abstract words is strong for lawyers. Lawyers want to be cautious and to cover every possibility, while leaving room to wiggle out if necessary. The vagueness of abstract words therefore seem attractive. Particularly attractive are words like basis, situation, consideration, facet, character, factor, degree, aspect, and circumstances:

In our present circumstances, the budgetary aspect is a factor which must be taken into consideration to a greater degree.

Perhaps that means “now we must think more about money,” but the meaning is a shadow in the fog of abstract words.

Do not mistake abstraction of that sort for the intentional, artful vagueness sometimes required in legal writing. For example, judicial opinions sometimes use an intentionally vague phrase to provide a general compass heading when it is not possible to map the trail in detail. In Bates v. State Bar of Arizona the Supreme Court announced that lawyer advertising is protected by the free speech clause of the first amendment. The Court wanted to tell the states that they could regulate lawyer advertising some, but not too much. The Court could not then tell how much would be too much, so it said that states may impose “reasonable restrictions on the time, place and manner” of lawyer advertising. The phrase is intentionally vague. It gives general guidance, but it postpones specific guidance until specific facts come before the Court in later cases. Intentional vagueness is likewise used in drafting statutes, contracts, and the like, when the drafter cannot foresee every specific set of facts that may arise. But vagueness is a virtue only if it is both necessary and intentional. Knowing when to be vague and when to press for more concrete terms is part of the art of lawyering.

 

B. Use Familiar Words

Aristotle put the case for familiar words this way: “Style to be good must be clear, as is proved by the fact that speech which fails to convey a plain meaning will fail to do just what speech has to do… Clearness is secured by using the words. . . that are current and ordinary.” Given a choice between a familiar word and one that will send your reader groping for the dictionary, use the familiar word. The reader’s attention is a precious commodity, and you cannot afford to waste it by creating your own distractions.

Unlike many kinds of writers, attorneys usually know who their readers will be, and their choice of words can be tailored accordingly. A patent lawyer who is writing a brief to be filed in the United States Court of Customs and Patent Appeals can use words that would be perplexing if used in a letter to the inventor-client. Conversely, in writing to the inventor-client, the patent lawyer might use words that would be gibberish if used in a legal brief. In either case, the convenience of the reader must take precedence over the self-gratification of the writer.

Even among familiar words, prefer the simple to the stuffy. Don’t say termination if end will do as well. Don’t use expedite for hurry, or elucidate for explain, or utilize for use. Do not conclude from this that your vocabulary should shrink to preschool size. If an unfamiliar word is fresh and fits your need better than any other, use it – but don’t utilize it. (See Exercise 6, Appendix A.)

 

C. Do Not Use Lawyerisms

Lawyerisms are words like aforementioned, whereas, res gestae, and hereinafter. They give writing a legal smell, but they carry little or no legal substance. When they are used in writing addressed to non- lawyers, they baffle and annoy. When used in other legal writing, they give a false sense of precision and sometimes obscure a dangerous gap in analysis.

A lawyer’s words should not differ without reason from the words used in ordinary English. Sometimes there is a reason. For example, the Latin phrase res ipsa loquitur has become a term of art that lawyers use to communicate among themselves, conveniently and with a fair degree of precision, about a tort law doctrine. But too often lawyers use Latin or archaic English phrases where there is no need. Sometimes they do it out of habit or haste – the old phrase is the one they learned in law school, and they have never taken time to question its use. Other times they do it believing mistakenly that the old phrase’s meaning cannot be expressed in ordinary English, or that the old phrase is somehow more precise than ordinary English.

Consider, for example, the word said in its archaic use as an adjective. No lawyer in dinner table conversation says: “the green beans are excellent; please pass said green beans.” Yet legal pleadings come out like this:

The object of said conspiracy among said defendants was to fix said retail prices of said products throughout said State of New York.

Lawyers who have an affinity for said claim it is more precise than ordinary words like the, or this, or those. They say it means “the exact same one mentioned above.” But the extra precision is either illusory or unnecessary, as the example above shows. If only one conspiracy has been mentioned in the preceding material, there is no danger of our mistaking this conspiracy for some other conspiracy, and said is unnecessary. If more than one conspiracy has been previously mentioned, said does not tell us which of the several is meant. The extra precision is thus illusory. If the were put in place of all the said’s, the sentence would be no less precise and much less clumsy.

Aforementioned is said’s big brother, and it is just as useless. “The fifty acre plot aforementioned shall be divided. . . .” If only one fifty acre plot has been mentioned before, then aforementioned is unnecessary, and if more than one fifty acre plot has been mentioned before, then aforementioned is imprecise. When precision is important, use a specific reference: “The fifty acre plot described in paragraph 2(f) shall be divided. . ….”

Res gestae is an example of a Latin lawyerism that can obscure a dangerous gap in analysis. Translated, it means “things done.” In the early 1800’s, it was used to denote statements that were made as part of the transaction in issue (the “things done”) and that were therefore admissible in evidence despite the hearsay rule. Perhaps because res gestae is far removed from ordinary English, lawyers and judges began to treat it as a ragbag. They used it carelessly to cover many different kinds of statements made at or about the time ,of the transaction in issue. With policy and analysis obscured, res gestae became little more than a label to express the conclusion that a particular statement ought to be admitted into evidence over hearsay objection. Wigmore said: “The phrase “res gestae” has long been not only entirely useless, but even positively harmful. . . It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both.””‘ The moral is this: Do not be too impressed by the Latin and archaic English words you read in law books. Their antiquity does not make them superior. When your pen is poised to write a lawyerism, stop to see if your meaning can be expressed as well or better in a word or two of ordinary English. (See Exercise 7, Appendix A.)

III

USE SHORT SENTENCES

For several hundred years, English speaking lawyers have been addicted to long, complicated sentences. The long sentence habit began when English had no regular system of punctuation. But in law, the habit persisted long after orderly division of thoughts had become routine in ordinary English prose. When lawyers write, they deliver to the reader in one gigantic package all their main themes, supporting reasons, details, qualifications, exceptions, and conclusions. In particular, statutes and regulations wind on line after line, perhaps on the theory that if the readers come to a period they will rush out to violate the law without bothering to read on to the end. For example, here is section 631(a) of the California Penal Code:

Any person who, by means of any machine, instrument, or contrivance, or in any manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument of any internal telephonic communications system, or who will- fully and without consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the con- tents or meaning of any message, report, or communication while the same is in transit or passing over any such wire, line or cable, or is being sent from or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison not exceeding three years, or by both such fine and imprisonment in the county jail or in the state prison.

That sentence contains 242 words and no fewer than eighteen separate thoughts. Little wonder it is hard to swallow.

A. Short Sentences Aid Comprehension

Long sentences make legal writing hard to understand. To prove this to yourself, read the following passage once at your normal speed. Then ask yourself what it means.

In a trial by jury, the court may, when the convenience of witnesses or the ends of justice would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of the pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 10 days before the trial date, that the trial of the issue of liability shall precede the trial of any other issue in the case… 

The subject matter of that passage is not profound or complicated, but the passage is hard to understand. It consists of a single sentence, eighty-six words long, containing five pieces of information. It tells us that:

(1)  in a jury case, the liability issue may be tried before any other issue;(2)  the judge may order this if it will serve the convenience of witnesses or the ends of justice;(3)  the order may be made on a party’s motion, after notice and hearing;(4)  in a case with a pretrial conference, the order must be made before the end of the conference; and(5)  in a case with no pretrial conference, the order must be made at least ten days before the trial date.

The passage is hard to understand for two reasons. First, the single sentence format caused the author to distort the logical order of the five pieces of information. The first thing the readers want to know is what the passage is about. It is about the trial of the liability issue before the other issues. But the readers do not discover that until they have climbed through a thicket of subsidiary ideas and arrived at the last twenty words of the sentence. Second, the single sentence” format strains the readers’ memories. The subject of the sentence (court) appears at word seven. At word thirty-two, the verb (make) finally shows up. Part of the object (an order) comes next, but the critical part remains hidden until the readers arrive, breathless, at word sixty-eight. By then they have forgotten the subject and verb and must search back in the sentence to find them.

The remedy for such a passage is simple. Instead of one long sentence containing five thoughts, use five sentences, each containing one thought. Here is one way the passage could be rewritten:

In a jury case, the court may order the liability issue to be tried before any other issue. This may be done if the court finds that it would serve the convenience of witnesses or the ends of justice. The order may be made on the motion of a party, after notice and hearing. In cases where a pretrial conference is held, the order must be made before the end of the conference. In other cases the order must be made at least ten days before the trial date.

In place of one eighty-seven-word sentence, we now have five sentences with an average length of eighteen words. Each sentence contains only one main thought, and the thoughts follow in logical sequence.

 

B. A Guide to Clarity

Passages like the one above suggest a two-part guide to clarity and ease of understanding in legal writing:

(1) In most sentences, put only one main thought.

(2) Keep the average sentence length below twenty-five words.

Do not misinterpret this guide. The first part says that most sentences should contain only one main thought. It does not say that every sentence should contain only one main thought. The second part says that the average length of your sentences should be below twenty-five words. It does not say that every sentence should be twenty-five words or less. A succession of short, simple sentences sounds choppy:

Defense counsel objected to the question. She argued that it called for hearsay. The court overruled the objection. The witness was allowed to answer.

You need an occasional longer sentence in which two or more main thoughts are joined.

Defense counsel objected to the question, arguing that it called for hearsay; the court overruled the objection, and the witness was allowed to answer.

But when you write a long sentence, bear in mind Mark Twain’s advice. After recommending short sentences as the general rule, he added:

At times [the writer] may indulge himself with a long one, but he will make sure that there are no folds in it, no vaguenesses, no parenthetical interruptions of its view as a whole; when he has done with it, it won’t be a sea-serpent with half of its arches under the water, it will be a torch-light procession.

(See Exercise 8, Appendix A.)

 

C. Use Tabulation to Split Up Long Sentences

Sometimes the shortest, clearest way to present a complicated piece of material is in one long sentence, split up like a laundry list. This device is called tabulation. You will see one example on page 742, above. Here is another, a statement of the damage rules followed in contract interference cases:

One who is liable to another for interference with a contract or a prospective advantageous economic relation is liable for damages for:(a) the pencuniary loss of the benefits of the contract or the prospective relation;(b) other pecuniary loss for which the interference is a legal cause; and(c) emotional distress or actual harm to reputation, if they are reason- ably to be expected to result from the interference.

When you tabulate, follow these conventions:

(1)  The items in the list must be of the same class. (Don’t make a list of (a) bread, (b) eggs, and (c) Czar Nicholas II.)(2)  The items in the list must fit, in substance and grammar, with the material in front of the colon. If the sentence continues past the 
last item in the list, the concluding material must fit also.(3)  The items in the list should be indented to set them apart from the material before and after.(4)  The items in the list should begin with a lower case letter.(5)  If the last item in the list is the end of the sentence, it should end with a period. If it is not the end of the sentence, it should end with a semicolon.(6)  The next-to-last item in the list should end with a semicolon followed by or (if the list is disjunctive) or and (if the list is conjunctive.)(7)  The other items in the list should end with semicolons.

As the preceding paragraph shows, you can also use tabulation to bring order to a series of related, complete sentences. Use the preceding paragraph as a guide to the conventional form and punctuation of that type of tabulation.

(See Exercise 9, Appendix A.)

IV

USE BASE VERBS AND THE ACTIVE VOICE

These two passages say the same thing. Which of them do you prefer?

Passage One. The conclusion which has been reached by my client is that if there is a continuation of your insistence on this position, the termination of the contract will be taken into serious consideration by her.Passage Two: My client has concluded that if you continue to insist on this position, she will seriously consider terminating the contract.

Passage Two is better, is it not? Passage One clanks along like a rusty tank. It is an overblown example of two common legal writing faults: (1) the writer has overused the passive voice, and (2) the writer has converted crisp base verbs (like continue) into sodden derivative nouns (like continuation).

 

A. Base Verbs v. Derivative Nouns and Adjectives

At its core, the law is not abstract; it is part of a real world full of people who live and move and do things to other people. Car drivers collide. Plaintiffs complain. Judges decide. Defendants pay. To express this life and motion, a writer must use verbs-action words. The purest verb form is the base verb, like collide, complain, decide, and pay. Base verbs are simple creatures. They cannot tolerate adornment.

If you try to dress them up, you squash their life and motion. Unfortunately, that is done all too easily. The base verb collide can be decked out as a derivative noun, collision. Likewise, complain becomes complaint, decide becomes decision, and pay becomes payment. Lawyers love to ruin base verbs. Lawyers don’t act-they take action. They don’t assume-they make assumptions. They don’t conclude-they draw conclusions. With too much of this, legal writing becomes a lifeless vapor.

When a base verb is replaced by a derivative noun or adjective, surplus words begin to swarm like gnats. “Please state why you object to the question,” comes out like this: “Please make a statement of why you are interposing an objection to the question.” The base verb state can do the work all alone. But to get the same work out of statement, you need a supporting verb (make), an article (a), and a preposition (of). The derivative noun objection attracts a similar cloud of surplus words.

Do not conclude from this that derivative nouns and adjectives are always bad; sometimes you need them. But do not overuse them in. place of base verbs. You can spot the common ones by their endings: -ment, -ion, -lion, -ance, -ence, -ancy, -ency, -ant, and -ent. When you spot one, stop to see if you can make your sentence stronger and shorter by using a base verb instead. (See Exercise 10, Appendix A.)

 

B. The Active Voice v. The Passive Voice

When you use the active voice, the subject of the sentence acts: “The union filed a complaint.” When you use the passive voice, the subject of the sentence is acted upon: “A complaint was filed by the union.”

The passive voice has two disadvantages. First, it takes more words. When you say, “the union filed a complaint,” filed does the work by itself. But when you say, “a complaint was filed by the union,” the verb filed requires a supporting verb (was) and a preposition (by). Here are other examples:

PASSIVE VOICE
 ACTIVE VOICE
the ruling was made by the trial judge that the trial judge ruled that
our interpretation is supported by the legislative history the legislative history supports our interpretation
the trust was intended by the trust or to the trust or intended the trust to

The second disadvantage of the passive voice is its detached abstraction. With the active voice, the reader can usually see who is doing what to whom. But the passive voice often leaves that unclear:

It is feared that adequate steps will not be taken to mitigate the dam- ages which are being caused.

Who is doing the fearing? Who is supposed to take the steps? Who is causing the damages? We cannot tell because the actor in each case is hidden in the fog of the passive voice.

The passive voice can be particularly noxious in technical legal writing. Consider this patent license provision:

All improvements of the patented invention which are made hereafter shall promptly be disclosed, and failure to do so shall be deemed a material breach of this license agreement.

Who must disclose what to whom? Must the licensee disclose improvements it makes to the licensor? Must the licensor disclose improvements it makes to the licensee? Must each party disclose the improvements it makes to the other party? If it ever becomes important, the parties probably will have to fight it out in an expensive law- suit.

The passive voice has its proper uses. First, you can use it when the thing done is important, and the one who did it is not:

The summons and complaint were served on January 19th.

Second, you can use it where the actor is unknown or indefinite:

The ledgers were mysteriously destroyed.

Third, you can use it to place a strong element at the end of the sentence for emphasis:

In the defendant’s closet was found the bloody coat.

Fourth, you can use it on those rare occasions when detached abstraction is appropriate:

All people were created with a thirst for knowledge.

But elsewhere, use the active voice; it will make your writing stronger, briefer, and clearer. (See Exercise 11, Appendix A.)

 

V


ARRANGE YOUR WORDS WITH CARE

In some languages, the order of words within a sentence does not affect the sentence meaning. But in English, word order does affect meaning, as this sentence shows:

The defendant was arrested for fornicating under a little-used state statute.

To avoid that sort of gaffe, you must take care in arranging your words.

 

A. Normal Word Order and Inversion for Emphasis

To make your writing easy to understand, most of your sentences should follow the normal English word order – first the subject, then the verb, and then the object (if there is one):

The complaint was filed. [subject – verb]The defendant filed a demurrer. [subject – verb – object]

If you want to emphasize a word, the strongest place to put it is at the end of the sentence. The next-strongest place is at the beginning of the sentence. Suppose that in this sentence you want to emphasize the word conspiracy:

Plaintiff’s complaint makes a conspiracy charge against the defendants.

One way is to put conspiracy at the beginning of the sentence:

Conspiracy is charged in plaintiff’s complaint against defendants.

But the emphasis is stronger if you put conspiracy at the end of the sentence:

Plaintiffs complaint charges the defendants with conspiracy.

Note that in each of the three sentences the subject comes before the verb. On rare occasion, you may want to place extra stress on the subject by inverting the normal word order and putting the subject at the end of the sentence:

Basic to our liberties is fair procedure.

(See Exercise 12, Appendix A.)

 

C. Keep the Subject Close to the Verb and the Verb Close to the Object

Lawyers like to test the agility of their readers by making them leap wide gaps between the subject and the verb and between the verb and the object. For example:

A claim, which in the case of negligent misconduct shall not exceed $500, and in the case of intentional misconduct shall not exceed $1,000, may be filed with the Office of the Administrator by any injured party.

In that sentence the reader must span a twenty-two-word crevasse to get from the subject (claim) to the verb (may be filed). The best remedy for a gap this wide is to turn the intervening words into a separate sentence:

Any injured party may file a claim with the Office of the Administra- tor. A claim shall not exceed $500 for negligent misconduct, nor $1,000 for intentional misconduct.

Smaller gaps between subject and verb can be closed by moving the intervening words to the beginning or end of the sentence:

GAP GAP CLOSED
This agreement, unless revocation has occurred at an earlier date, shall expire on November 1, 1989. Unless sooner revoked, this agreement shall expire on November 1, 1989.
The defendant, in addition to having to pay punitive damages, may be liable or plaintiffs costs and attorney fees. The defendant may have to pay plaintiffs costs and attorney fees, in addition to punitive damages.

The problem is the same when the gap comes between the verb and the object:

The proposed statute gives to any person who suffers financial injury by reason of discrimination based on race, religion, sex, or physical handicap a cause of action for treble damages.

Here a twenty-one word gap comes between the verb (gives) and the direct object (cause of action). One remedy is to make two sentences. Another is to move the intervening words to the end of the sentence:

The proposed statute gives a cause of action for treble damages to any person who suffers financial injury by reason of discrimination based on race, religion, sex, or physical handicap.

(See Exercise 13, Appendix A.)

 

D. Put Modifying Words Close to What They Modify

Modifying words tend to do their work on whatever you put them near. For example, this sentence conveys three different pictures, de- pending on where you put the modifier:

The judge ordered the marshal to eject the photographer.[who was kicking and screaming]

As a general rule, put modifying words as close as you can to what you want them to modify. That will help avoid sentences like these:

My client has discussed your proposal to fill the drainage ditch with his partners.The defendant is accused of assaulting Professor Appleman while he was teaching a class maliciously and with intent to do great bodily harm.Being beyond any doubt insane, Judge Weldon ordered the petitioner’s transfer to a state mental hospital.

Beware of the “squinting” modifier — one which sits mid-sentence and can be read to modify either what precedes it or what follows it:

A trustee who steals dividends often cannot be punished.

What does often modify? Does the sentences tell us that crime frequently pays? On that frequent crime pays? Squinting modifiers are especially mischievous in technical legal instruments:

If this contract is terminated under paragraph 3(d)(1), Agent shall be notified immediately to cancel all outstanding workorders.

What must be immediate, the notice or the cancellation?

Once discovered, a squinting modifier is easily cured. Either choose a word that does not squint, or rearrange the sentence to avoid the ambiguity. In the last example, immediately could be put before notfied or after cancel, whichever would express the parties’ intent.

The word only is a notorious troublemaker in legal writing. For example, in this sentence, the word only could go in any of seven places and produce a half a dozen different meanings:

She said that he shot her.

To keep only under control, put it immediately before the word you want it to modify. If it creates ambiguity in that position, try to isolate it at the beginning or the end of the sentence:

AMBIGUOUS
 CLEAR
Lessee shall use the vessel only for recreation. Lessee shall use the vessel for recreation only.
Shares are sold to the public only by the parent corporation, Only the parent corporation sells shares to the public.

Watch out for ambiguity in sentences like this one:

The grantor was Maxwell Aaron, father of Sarah Aaron, who later married Pat Snyder.

Who married Pat – Maxwell or Sarah? Some lawyers try to clear up such ambiguity by piling on more words:

The grantor was Maxwell Aaron, father of Sarah Aaron, which said Maxwell Aaron later married Pat Snyder.

But it’s easier than that. You can usually avoid ambiguity by placing the relative pronoun (like who, which, and that) right after the word to which it relates. If Pat’s spouse were Maxwell, the sentence could be rearranged to read:

The grantor was Sarah Aaron’s father, Maxwell Aaron, who later married Pat Snyder.

Sometimes a relative pronoun will not behave, no matter where you put it:

Claims for expenses, which must not exceed $100, must be made within 30 days.

What must not exceed $100 – the claims or the expenses? Here the best remedy is simply to cut out the relative pronoun:

Claims for expenses must not exceed $100 and must be made within 30 days.orExpenses must not exceed $100. Claims for expenses must be made within 30 days.

(See Exercise 14, Appendix A.)

 

VI

AVOID LANGUAGE QUIRKS

Language quirks are small distractions that draw your reader’s mind from what you are saying to how you are saying it. Most of what lawyers write is read by people, not because they want to, but because they have to. Their attention is, therefore, prone to wander. Further, they are usually surrounded by outside distractions-the ring of the telephone, the cough at the library table, and the clock that tells them time is short. Language quirks add to those distractions and are thus to be avoided.

 

A. Elegant Variation

Elegant variation is practiced by writers whose English teachers told them not to use the same word twice in one sentence. The practice produces sentences like this:

The first case was settled for $2,000, and the second piece of litigation was disposed of out of court for $3,000, while the price of the amicable accord reached in the third suit was $5,000.

The readers are left to ponder the difference between a case, apiece of litigation, and a suit. By the time they conclude that there is no difference, they have no patience left for settled, disposed of out of court, and amicable accord, much less for what the writer was trying to tell them in the first place.

Elegant variation is particularly vexing in technical legal writing. The reader of a formal instrument is entitled to assume that a shift in terms is intended to signal a shift in meaning, and the reader is justifiably puzzled at passages like this:

The use fee shall be 1% of Franchisee’s gross revenue. Franchise payments shall be made on or before the 15th day of each month.

Are franchise payments something differ than the use fee? If so, what are they, and when must the use fee be paid?

Do not be afraid to repeat a word if it is the right word and if repeating it will avoid confusion. If the repetition sounds clumsy, try a pronoun or recast the sentence:

The arresting officers did not inform the defendant of her right to remain silent, and the arresting officers did not permit the defendant to call her lawyer. The arresting officers did not inform the defendant of her right to remain silent, and they did not permit her to call her lawyer.
The plaintiff alleges that he was deprived of his rights under the first amendment and under the fourteenth amendment. The plaintiff alleges that he was deprived of his rights under the first and fourteenth amendments.

Only slightly less confusing than elegant variation is the use of a word in one sense and its repetition shortly after in a different sense:

The majority opinion gives no consideration to appellant’s argument that no consideration was given for the promise.

The remedy is obvious-replace one of the pair with a different term:

The majority opinion ignores appellant’s argument that no consideration was given for the promise.

 

B. Noun Chain Confusion Avoidance Technique

As the heading of this section demonstrates, a long chain of nouns used as adjectives is apt to strangle the reader. Military writers are fond of noun chains. They have their radiation contamination detection devices, their retrograde motion simulation capabilities, and their programmed precounterinsurgency countermeasures. Lawyers are not immune. They have been known to make cease and desist order compliance investigation reports and to file pretrial document identification request objections.

To bring a noun chain under control, lop off any of the descriptive words that are unnecessary. If that is not enough, then insert some words to break up the chain, like this: “objections to the request for pretrial identification of documents.”

 

C. Sexism in Legal Writing

The time has passed when legal writers can pretend that the world is inhabited by males only. Women are tired of being told that “words importing the masculine gender include the feminine as well.” But writing genderless English is not easy. If you write “each judge has his own ideals,” you will be faulted for ignoring the women on the bench. If you write “each judge has his or her own ideals,” you will be faulted for clumsy construction. If you write “all judges have their own ideals,” you will be faulted for not stating clearly what you mean.

Nonetheless, the sex bias of our language can be mitigated in several ways:

1) Avoid expressions that imply value judgments based on sex:

a man-size joba manly efforttook it like a mana real sob sisteran old-maid attitudea member of the weaker sex

(2) Avoid expressions that suggest that men are the only people on earth:

AVOID USE
man’s basic liberties basic human liberties
reasonable man reasonable person

the wisdom of man human wisdom

(3) Avoid sex based descriptions and titles when there are reasonable substitutes:

AVOID USE

workman worker
congressmen member of Congress
policeman police officer
mayoress mayor
authoress author
foreman supervisor
newsman reporter, journalist

(4) When referring to both sexes, use parallel construction:

AVOID USE
men and their wives husbands and wives
ladies and men men and women, ladies and gentlemen
President Washington and Martha President and Mrs. Washington

(5) Avoid using masculine singular pronouns when the referent is not necessarily male. Phrases like he or she can be used in moderation, but it is usually less clumsy to recast the sentence in one of these ways:

(a) Omit the pronoun:

The average citizen enjoys his time on the jury. The average citizen enjoys jury duty.

(b) Use the second person in place of the third person:

Each juror must think for himself. As a juror, you must think for yourself.

(c) Use the plural in place of the singular:

Each juror believes that he has done something worthwhile. All jurors believe that they have done something worthwhile.

(6) If you are desperate, you can recast the sentence in the passive voice, but that has its own drawbacks.

 

D. Adjective – Adverb Mania

Most legal writing is declaratory. Its simply states the facts, with- out comment and without trying to persuade anyone of anything. Statutes, apartment leases, corporate bylaws, and bills of lading fall in this category. But some legal writing does comment; through com- mentary, it seeks to persuade the reader to believe what the writer be- lieves. Legal briefs and judicial opinions are obvious examples. Where commentary is appropriate, it will be more potent if you use strong nouns and verbs, not weak nouns and verbs held afloat by adjec- tives and adverbs:

ADJECTIVES AND ADVERBS NOUNS AND VERBS
The witness intentionally testified untruthfully about the cargo. The witness lied about the cargo.
Defendant’s sales agents maliciously took advantage of people with little money and limited intelligence. Defendant’s sales agents preyed on the poor and ignorant.

When you need to use an adjective or adverb for commentary, choose one that fits. Do not use a fiery one and then douse it with water:

rather catastrophicsomewhat terrifieda bit malevolentlyslightly hysterical

Likewise, do not choose a flaccid one and then try to prop it up with words like very, much, and quite:

WEAK STRONG
she was very, very angry she was enraged
this is quite puzzling this is baffling
there was much confusion in the courtroom 
 
the courtroom was chaotic

Adjective-adverb mania sometimes produces terms like “real facts.” Are there any “unreal facts”? If a witness is described as telling the “honest truth,” what are we to say of those who tell only the “truth”? Is a “dead murder victim” any colder than a “murder victim”? Is a “completely revoked” contract offer any more lifeless than one that has only been “revoked”? What are we to say when asked our “actual age”? To avoid all this, forget the adjectives and adverbs and let the nouns and verbs do their work.

 

E. Throat Clearing

Just as some public speakers clear their throats at every pause, some legal writers feel the need to clear the clogs from their pens every fifty words or so. The result is a collection of phrases like this:

It is important to add that ….Clear beyond dispute is the fact that ….It may be recalled that ….In this regard it is of significance that ….It is interesting to point out that ….

William Zinsser writes:

If you might add, add it. If it should be pointed out, point it out. If it is interesting to note, make it interesting. Being told that something is interesting is the surest way of tempting the reader to find it dull …

Words like clearly are favorite throat clearers. California’s former Chief Justice Roger Traynor used to tell his law clerks to strike clearly whenever they used it: if what is said is clear, then clearly is not needed, and if it is not clear, then clearly will not make it so. (See Exercise 15, Appendix A.)

 

CONCLUSION

Writing plain legal English is not easy. You can learn only by putting your own pencil to paper. That is why the practice exercises are included in Appendix A; if you have ignored them up to now, go back and work them. Remember, too, that a lawyer who writes plain English may not be loved by other lawyers. Economist John Kenneth Galbraith addressed this point when speaking of the need for plain English in his field. What he says applies equally to the law:

[T]here are no important propositions that cannot be stated in plain language…. The writer who seeks to be intelligible needs to be right; he must be challenged if his argument leads to an erroneous conclusion and especially if it leads to the wrong action. But he can safely dismiss the charge that he has made the subject too easy. The truth is not difficult. Complexity and obscurity have professional value-they are the academic equivalents of apprenticeship rules in the building trades. They exclude the outsiders, keep down the competition, preserve the image of a privileged or priestly class. The man who makes things clear is a scab. He is criticized less for his clarity than for his treachery.

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