Style and Legal Writing
If writing is hard — and it is — then legal writing is both easier and more difficult still. Easier, perhaps, because it is stylized: everything from briefs to judgments and legislation is carefully cropped of individuality and approximated to yesterday’s example — understandably, because “It’s not about you, writer” and it is about avoiding risk.
And yet . . . and yet . . .
More difficult, because, well, because life must break through from time to time if legal writers are not to fall on their quills or die of acute accidie. It’s far from easy to give expression to your style without rotting your argument, far from easy, instead, to make the lines of truth and beauty leave the parallel and suggest, at least, a convergence.
Law school is starting or has already just begun, and first year students are being taught to think like lawyers — which ought to mean “write like lawyers.” And so I thought of all this and LRW when I read today’s post by Mark Liberman on Language Log, where he gleefully quotes at length from Richard Lanham’s Style: An Anti-Textbook as he excoriates the “good writing” or “plain writing” textbooks, the earnestness of which “lies upon the spirit like wet cardboard,” and whose advice is as dull and prosaic as that of Polonius. Says Lanham:
What we have now is a tedious, repetitive, unoriginal body of dogma—clarity, sincerity, plainness, duty—tarted up every week in a new, disposable paperback dress. The dogma of clarity, as we shall see, is based on a false theory of knowledge; its scorn of ornament, on a misleading taxonomy of style; the frequent exhortations to sincerity, on a naïve theory of the self; and the unctuous moralizing, on a Boy Scout didacticism
What hope, then, for legal writing? Structurally . . . doomed?
Simon,
Legal writing for what?
1. Letters to clients?
2. Letters between lawyers?
3. Internal memoranda?
4. Court briefs?
5. Court reasons for judgment?
6. Journal articles or books?
All one wants in 1-4 is clarity. It’s easy to build structures with short sentences if one knows one’s material and one has acquired what should be basic skills.
Hemingway’s style – a good journalist’s style – is style enough.
Clarity is enough for 5, too. If the judge has style, too, then so much the better; but not if it’s at the expense of clarity.
That brings us to 6. Clarity comes first; style second, again; right? I wanted the main title of my last major piece to be “Black Holes And Aether”. The publisher wanted something less subtle.
Practitioners don’t care about style if there is clarity. Who is it, then, who is complaining? Not students: they want what they need for practice, so we’re told. Some academics are complaining about the quality of the legal writing of others? Of judges? You know what the practitioners’ response to that will be.
Once upon a time, just before and just after the beginning of the first millennium CE, there was an apocalypse-is-coming-soon industry. The industry seems to have produced scrolls of bad writing, most of which is fortunately (for literary purposes, if not historical) lost. It also produced some text which became poetry, eventually, the heart of the English language. However, I doubt any of the writers were in it for financial gain; or that many became the Pynchons or even Browns of their generation.
That apocalypse never happened, then.
It didn’t happen in 1001, either.
About 1 millennium later, in the approach to the current millennium, a number of people became wealthy enough writing and lecturing about another supposedly impending apocalypse: the supposed Y2K problem.
That one didn’t happen in 2000 or 2001. I don’t recall hearing that any of the Cassandras offered to return their engagement fees.
I figure the legal-writing-sucks-and-the-sky-is-going-to-fall industry has existed for at least a century. A number of people are, seeming, making a some or all of a living from that industry.
I’m still waiting for that apocalypse. I’m also waiting for at least one of the writers to suffer a metaphorical equivalent of Cassandra’s reputed fate. The law of averages dictates that, no?
In the meantime, anybody else waiting for that apocalypse who wants to read good legal writing – clear, concise, form and content, often with humour – should pick up anything by Pierre Schlag of the University of Colorado Law School. (There’s Canadian material, too, of course. I’ve chosen Prof. Schlag because, this way, not even Mr. Outis could suggest I’m doing so to curry favour.)
I will now return to my preferred writing style: building structures in sentences. It’s more enjoyable, at least for me.
Cheers,
David
RE: What hope, then, for legal writing? Structurally . . . doomed?
“Doomed”? Maybe not. Justice George Strathy offered up “hope” in a Toronto Star column not all that long ago (excerpt below).
Toronto Star, Aug 5, 2011
Clarity in the courts: Justices go to writing school