37. Top 10 signs of bad legal writing

© 2001, 2009
 Eugene Volokh  and J. Alexander Tanford

10. USING PASSIVE RATHER THAN ACTIVE VOICE

BAD LEGAL WRITERS USE PASSIVE VOICE

  • “the ruling was made by the judge”
  • “the complaint was filed by the plaintiff”
  • “It was held that…”

GOOD WRITERS USE THE ACTIVE VOICE

  • “the judge ruled”
  • “the plaintiff filed a complaint”
  • “the court held…”

SPOTTING GUIDE

  • Check for the word “by” (search for “by[space]”)
  • Look for sentences or phrases starting with “it is” or “it was.”

EXCEPTION. Use the passive voice when you do not know the actor or when the result is more important that who did it.

  • “Ted Stevens was re-elected anyway” (result important)
  • “The documents were mysteriously destroyed.” (actor unknown)

9. NOMINALIZATIONS

BAD LEGAL WRITERS TURN VERBS INTO NOUNS, AND THEN ADD AN EXTRA VERB TO TAKE THE PLACE OF THE ONE THEY CONVERTED

  • “reached a conclusion”
  • “granted a continuance”
  • “involved in a collision”
  • “take action”

GOOD WRITERS JUST USE THE FIRST VERB

  • “concluded”
  • “continued”
  • “collided”
  • “act”

SPOTTING GUIDE
. Look for words ending in “ion.”

8. FEAR OF CALLING THINGS BY THEIR NAMES

BAD LEGAL WRITERS ARE AFRAID TO CALL THINGS BY NAME, USING GENERIC TERMS INSTEAD

  • The plaintiff
  • The defendant
  • The day in question
  • The scene of the accident
  • Her place of employment

GOOD WRITERS GIVE THEIR CHARACTERS NAMES

  • Susan Jones
  • Michael Fitzhugh
  • June 3rd
  • In the parking lot
  • Pizza Hut

7. VERBOSITY

BAD LEGAL WRITERS USE RUN-ON SENTENCES CONTAINING NUMEROUS QUALIFYING PHRASES

  • “The court in Chester v. Morris, a case involving a similar traffic accident, held that a person riding a bicycle must adhere to the same standards as a person driving a car, although it limited its holding to the facts of that case, which included the fact that the bicyclist was intoxicated.”

GOOD WRITERS USE SEVERAL SHORT SENTENCES

  • 
”Chester v. Morris involved a similar traffic accident. The court held that a bicyclist must adhere to the same standards as a person driving a car. The opinion is limited to situations in which the bicyclist is intoxicated.”

6. QUALIFYING PHRASES

BAD LEGAL WRITERS PUT QUALIFYING PHRASES IN THE MIDDLE OF SENTENCES WHERE THEY DO NOT BELONG

  • “the court, although it limited its holding, held that a bicyclist must adhere to traffic rules”
  • “the court has, although with limits, held that a bicyclist must adhere to traffic rules”
  • “the court held, although with limits, that a bicyclist must adhere to traffic rules”

GOOD WRITERS PUT QUALIFYING PHRASES AT THE END OF SENTENCES OR ELIMINATE THEM ALTOGETHER

  • “the court held that a bicyclist must adhere to traffic rules, although it limited its holding …”
  • “the court held that a bicyclist must adhere to traffic rules”

5. REDUNDANCY

BAD LEGAL WRITERS LIST EVERY KNOWN SYNONYM, AS IF THEY WERE WRITING A THESAURUS, IN A MISGUIDED EFFORT TO BE PRECISE

  • “Every town, city, or village”
  • “Cease and desist”
  • “Give, devise and bequeath”
  • “Null and void”

GOOD WRITERS USE A SINGLE WORD

  • “Every municipality”
  • “stop”
  • “give”
  • “void”

SPOTTING GUIDE. Look for “or” or “and.”

4. MEANINGLESS ADVERBS USED IN A VAIN EFFORT TO MAKE A WEAK POINT APPEAR STRONGER

BAD LEGAL WRITERS USE MEANINGLESS ADVERBS THINKING THEY MAKE AN ARGUMENT STRONGER

  1. Chester v. Morris clearly held that bicyclists must adhere to the rules of the road.
  2. The fact that he was drunk is extremely important
  3. The holding is very narrow.
  4. It is really important that he was not wearing a helmet.
  5. He was undoubtedly drunk.
  6. It is manifestly obvious that drunken bicyclists are dangerous.

GOOD WRITERS DILIGENTLY AVOID USELESS ADVERBS

  • Chester v. Morris held that bicyclists must adhere to the rules of the road.
  • The fact that he was drunk is important
  • The holding is narrow.
  • It is important that he was not wearing a helmet.
  • He was drunk.
  • It is obvious that drunken bicyclists are dangerous.

SPOTTING GUIDE. 
Look for words ending in “y”

3. MEANINGLESS WEASEL WORDS USED BECAUSE YOU’RE AFRAID TO TAKE A POSITION

BAD LEGAL WRITERS ARE AFRAID OF BEING WRONG AND USE WEASEL WORDS IN AN EFFORT TO AVOID TAKING A CLEAR POSITION

  • Alleged
  • maybe
  • quite possibly
  • at best/at least
  • might be
  • seems to
  • appears to
  • perhaps
  • so-called
  • implicates
  • probably
  • tends to

2. DOUBLE NEGATIVES

ONE OF THE CLEAREST SIGN OF THE BAD LEGAL WRITER IS THE DOUBLE NEGATIVE

  • “not uncommon”
  • “failed to show inability”
  • “not insignificant”
  • “not uncomplicated”
  • “no small part”
  • “not incapable”
  • “not inappropriate”

GOOD WRITERS USE SINGLE POSITIVES

  • “common”
  • “showed ability”
  • “significant”
  • “complicated”
  • “large part”
  • “capable”
  • “appropriate”

1. PHRASES WITH ABSOLUTELY NO MEANING WHATSOEVER

AND THE CLEAREST SIGN OF THE BAD LEGAL WRITER IS THE USE OF TOTALLY MEANINGLESS (AND USUALLY POMPOUS) PHRASES

  • “I would like to point out that Chester v. Morris was overruled”
  • “I would argue that Chester v. Morris is not applicable.”
  • “It should be noted that Chester v. Morris was decided before the statute was amended.”
  • “Evidence that the defendant was drunk does not operate to remove the issue of contributory negligence”
  • “Despite the fact that the defendant was drunk, he operated his bicycle carefully.”
  • “In fact, he should be commended.”
  • “During the course of his ride, he never fell off his bicycle”
  • “It has been determined that he was wearing his helmet.”
  • “It is obvious that a drunken bicyclist is a danger on crowded streets.”
  • “It is clear that he had the right of way and was justified in crossing the street”
  • “Chester v. Morris is distinguishable (or worse, clearly distinguishable). It does not apply because it involved an intoxicated bicyclist”

GOOD WRITERS OMIT THEM

  • 
”Chester v. Morris was overruled”
  • 
”Chester v. Morris is not applicable.”
  • “Chester v. Morris was decided before the statute was amended.”
  • “Evidence that the defendant was drunk does not remove the issue of contributory negligence”
  • “Despite the defendant’s drunkenness, he operated his bicycle carefully.”
  • “He should be commended.”
  • “During his ride, he never fell off his bicycle”
  • “He was wearing his helmet.”
  • “A drunken bicyclist is a danger on crowded streets.”
  • 
”He had the right of way and was justified in crossing the street”
  • 
”Chester v. Morris does not apply because it involved an intoxicated bicyclist”
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