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Thursday Thinkpiece: Neil Guthrie on Better Legal Writing

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GUTHRIE’S GUIDE TO BETTER LEGAL WRITING

Author: Neil Guthrie

ISBN: 978-1-55221-472-5
Publisher: Irwin Law
Page Count: 200 pp
Publication Date: December 2017

Regular Price: $55

© 2017 Irwin Law. All rights reserved.

Excerpt: Preface.

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This book began out of frustration.

Frustration at the turgid, pedantic, Latin-filled, jargon-ridden, misspelt, ungrammatical, and inelegant writing that issues from the pens and keyboards of lawyers, law students, and those who come within their orbit (assistants can have an unfortunate tendency to replicate the bad habits of those they work with).

My working title was Please Don’t Write like a Lawyer, but my publisher counselled against using that, in case it alienated the book’s main audience. It nevertheless provides an accurate insight into my motivation and method.

Why is legal writing so bad? People come to the profession from various academic and other backgrounds, and early on they feel as though they have been initiated into not only a mode of reasoning but also of writing: the art — or mystery perhaps — of law is attended by its terms of art. These are a hodge-podge of words, phrases, and habits of expression that have accreted over the centuries, mixing Law French with Latin, the English of the early modern period, memorable phrases from the case law and defined terms from statutes. Fluency with the lingo is seen, especially in law school and the early years of practice, as a proxy for knowledge of the law itself (whether this is true or not). Being a generally conservative and cautious bunch, lawyers are reluctant to change any wording they have learned or which practice has sanctioned, preferring the certainty of the known to potential ambiguity or uncertainty in something new, even when it is closer to current non-legal usage. This may explain the (sometimes justified) reluctance to adopt plain language in contractual or statutory drafting. Lawyerly caution results in passive constructions, hedged with qualifiers and exceptions. Modern education does not seem to include basic grammar and spelling, so the faults of lawyerish writing are now compounded by technical faults that would not have been present forty years ago. All these things make legal writing the mess it is today.

But lawyers are not drafting only for other initiates into the mysteries: they write for clients and members of the wider public, who are not lawyers and who care not at all for the linguistic arcana of the law. Lawyers forget this, importing the language of contracts or wills into their marketing pieces — or they think that they need to impress non-lawyers with a parade of their mastery of the craft. Non-lawyer readers are probably not impressed, and may be left bewildered.

Ever one to tilt against windmills, I embarked on a series of weekly writing tips at my former firm, with a view to improving the written communications of lawyers and students with each other and with the non-lawyer public. This was my announcement for the series:

We could all use some help with our writing, and help is on its way.

Every Friday, I’ll be sending a short, practical tip on effective writing in a legal context.

This is not contractual drafting or written advocacy (although some of what you’ll see will be applicable there), but advice on how to blog, how to stand out from the crowd, how to express yourself clearly and correctly.

A bit of strategy, some grammar and spelling, and a lot of style.

The response was good (the odd curmudgeon aside), so I asked the editors of slaw.ca if a wider readership on the Slaw Tips blog might be interested. A reader enquired whether those tips might be collected for easy reference. I made a proposal to Irwin Law, and here we are.

This book is neither comprehensive nor programmatic. There are far better books on grammar and spelling, and some of them are identified in the bibliography. Guthrie’s Guide is a selective response to the deficiencies in legal writing that seem to me most in need of fixing; you’ll need to look at other books for complete treatment of the subjunctive mood or the correct use of the comma (although both are touched upon in these pages). And before you point it out, I don’t always follow my own advice. And I do repeat myself, especially when it matters.

The book is also about legal writing (letters, memos, publications for external audiences) as opposed to legal drafting (contracts, factums, opinions), although there are some drafting points here and there (and, when I look at the table of contents, rather more of them than I had thought).

The Guide‘s format, loose arrangement, and liberal use of first-person pronouns reflect its origin as a series of largely unplanned, occasionally repetitious e-mail messages, although the table of contents and index will help readers find what they are looking for (or realize that they need to look elsewhere).

Readers will soon identify my biases: no points for figuring out my preference for the British over the American (although I do try to arrive at a happy Canadian middle ground). My debt to HW Fowler will be apparent — although I also acknowledge other models. On Fowler, I rely more on the second edition (1965, revised 1983) than the third (2004) because I’ve used it longer and because there is more of Fowler himself in it — and I admit I am myself resistant to change.

Readers are invited to send queries or comments to the author at info@guthriesguide.com. Replies requiring thought or research may take a while, but I shall respond to all as quickly as I can.

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