More on Legal Writing

Plain language — the written kind — has been of interest here on Slaw recently, with John Gregory’s post “Enforcing Plain Language” and Simon Chester’s post announcing the (October) Educaloi conference, “Telling the Law to the Public. Are There Better Ways?“. I’ve got a couple of things to offer here.

First, I thought readers might like to be reminded of The Legal Writing Institute and, particularly, its open access journal. (You should also have a look at volume one of their Monograph Series: The Art of Critiquing Written Work, which comprises 15 articles.)

There’s a pleasant surprise in the current issue: an article, “A Preliminary Exploration of the Elements of Expert Performance in Legal Writing” [PDF] by two former colleagues of mine, Erika Abner and Shelley Kierstead. After a thorough introduction to the matter of expertise and its acquisition, they discuss the results of a project in which fifteen senior Canadian lawyers (in three focus groups) talked about the legal writing of junior lawyers. The results are far too complex, of course, for me to summarize them adequately here, but this excerpt will give you an idea of the sorts of things the experts were concerned with:

… [T]he practitioners were able to describe seven product issues, including: grammar, organization and sequencing, road- mapping, verbosity (both legalese and excessive detail), analysis (including use of authority, attention to facts, identification of counter-arguments, bold conclusions), attention to client problem, and rhetorical issues (audience, purpose, and tone).

Sad to say, most of the criticisms were the same as those I had when I was teaching — sad, because law school isn’t succeeding in changing writing behaviour. The “case dump,” the fact that students don’t read books (how else “pier revue”?), failure to use the “point-first method,” inability to see that “facts” and “law” are intimately related — all these are still prevalent, apparently. And if I had to pick one of the authors’ conclusions as key, I’d choose the obvious:

Tackling increasingly sophisticated writing problems probably also requires institutional commitment to ongoing writing instruction throughout law school.

Second, I was struck today by the obvious (isn’t that usually what hits us?) point that plain language doesn’t just address the choice of words used to get a thought across but the choice of the thought as well. Let me illustrate by quoting what it was that caused my apperçu. At the bottom of my Visa bill this paragraph now appears:

If you make only the Minimum Payment each month, we estimate it will take 33 year(s) and 8 month(s) to fully repay the outstanding balance…

This causes an important “Aha” moment, as well as uproarious laughter. It doesn’t just get the point across, it reveals a point that, though a necessary implication of the 20% interest rate, had before now been concealed from those of us who are less than gifted in the math department. How to cope with shaving the truth will be more of a problem, of course, when it comes to contracts than when legislation is concerned, because superior information has always been used as a means of securing a better bargain in the market place. This is the “Aha, now I’ve got you, you son of a bitch” approach to contracts (ANIGYYSOB works less well where repeat business is concerned) and also the fairly universal approach to contracts of adhesion, such as those proposed by telecommunications companies, for instance.

It’s also the case that spelling out the implications of an arrangement is no easy matter, quite apart from questions of information advantage. What exactly is the baseline understanding upon which our plain language arrangements can be built? Assume that a contracting party is from Mars, and the market grinds to a halt as we go on at length to explain what a fork is. Etc. (What about appointing a “reasonable person” whose job it is to respond to questions and, so, to calibrate this baseline? Mind you, imagine if Yogi Berra had been given the job: “When you come to a fork in the road, take it.“)

So, obvious though it may be, and whether as a result of sharpness or mis-calibration, plain language needs a “full language” partner, if it’s to make the kind of sense that’s hoped for.

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  1. Interesting concept – plain language with a “full language” partner. You put the fundamentals of good writing (any kind of writing) so well. I don’t know why this all isn’t just common sense. Be brief; be clear; follow the rules of punctuation and grammar. This seems so simple, but hardly anyone does it. Being able to communicate well is at the heart of being an excellent lawyer. I mean, what’s the use of knowing the law, if you can’t present your analysis and arguments in a clear and persuasive way?

    Vidya Devaiah
    SDD Global Solutions

  2. Christopher Enright

    I am a former law teacher who has retired into writing and publishing. My analysis of the general skill of writing that must underpin legal writing is that the plain English proponents have unwittingly led us astray by generating, even if by implication, the notion that all problems with legal writing are plain English problems.

    My take is that the core of good writing has three components – structure, structure and structure. Some useful structures are obvious. For example a statement of facts is usually best done using chronology as the core organisational tool.

    In furthering this approach I have examined legal rules to see if there are any naturally occurring structures. I have found two. One is the overall structure of an area of law, which I label macro structure. The other is a standard structure that all legal rules possess (subject to a few harmless exceptions). I label this micro structure.

    My current view – subject to revision by deeper reflection and receipt of intelligent comment – is that these two techniques are the key not only to clear writing but the connected activities of understanding, learning, remembering and teaching law. Moreover, the method for organising legal rules appears to have benefit for litigation management, perhaps even alleviating some of the problems involved in discovery.

    I will comment again when my research is completed (or shovel ready as our politicians say about projects). Any interim comments would be much appreciated.

    Christopher Enright

  3. Sadly our culture is becoming more visual and less literate was thought that crossed my mind when I read …”the fact that students don’t read books.” Reading books will enhance the writer or author’s sense of narrative, or structure, structure, structure as Christopher Enright says. Perhaps law students could also get useful instruction from journalistic writing focusing on who, what, why, where, when and how.