Why Is Legal Writing So Complex?
“If I had more time, I would have written a shorter letter.”
In The Atlantic article “The Needless Complexity of Academic Writing“, the author Victoria Clayton critiques opaque writing that infects academic journals. She writes that the prose is “riddled with professional jargon and needlessly complex syntax… even someone with a Ph.D. can’t understand a fellow Ph.D.’s work unless he or she comes from the very same discipline.” This critique could easily be applied to legal writing, including some factums and judicial decisions.
Clayton explains that the main reason for opaque writing may not be so sinister. She refers to linguist Steven Pinker. Pinker is the author of The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century. (My favourite book on writing.)
Pinker explains that the “curse of knowledge” is to blame for opaque writing. The years of study required to become a specialist works against people’s ability to take complex ideas and turn them into simple prose. “Translation: Experts find it really hard to be simple and straightforward when writing about their expertise.” Experts are not trained to identify what others do not know. People assume that the words they use are universally known. Therefore, the writer does not stop to think about what the reader does not know.
When it comes to good writing, Pinker’s advice is to edit, edit, edit. “Because the order in which ideas occur to a writer is seldom the same as the order that are best digested by a reader. And often, good writing requires a revising and rearranging the order of what you introduce so that the reader can easily follow it.”
In sum, to write simply it helps to think of what the audience does not know and to edit intensively.
(Views are my own and do not reflect the views of any organization.)
I remember way back in the day a senior partner coaching us juniors to write a factum in a way that if we were hit by a bus on the way to court, any person on the street should be able to pick it up and understand it so that they could walk into court and tell the judges what it says. A complicated way to say “keep it simple”, maybe, but I have yet to master the art of writing complicated matters in a simple way. A bit ironic, because I find it easy to simplify when speaking (or at least I think I do…).
There is a good deal of sound advice in this blog. Writing simply, writing for the audience: these are excellent suggestions.
But, I do beg to differ on one point. I believe that the reason that expert legal or other professional or academic writing is longer and more complex is not always because of an inability of the author to write more simply, but because of the fact that what sometimes passes for simplicity is really just error, and experts (by their very nature and qualifications) care about being right.
For example, take the phrase which I presume to be a quotation from Pinker: “Experts find it really hard to be simple and straightforward when writing about their expertise.” This is a completely flawed sentence. It is riddled with improper English. (Please note that I could state this using short phrases and simple words; but that will pass.)
What Pinker should have written, to be more accurate, is this: “Many experts find it difficult to write simple and straightforward prose when writing about the subject matter of their expertise.” This adds a whole 5 words, yes, but they are neither jargony nor complex. The sentence is still accessible to the generally literate public. The difference between it and Pinker’s version is that this alternative sentence is not inaccurate.
These changes reflect the following points:
• Pinker said “Experts”, suggesting a universal condition. Yet, clearly there are some experts who do not suffer from this problem, since there are many accessible materials written by experts in various fields. “Many experts” is a more accurate phrase to describe the problem.
• Pinker used the colloquial expression “really hard”, whereas, actually, the thing he is writing about is only metaphorically “hard” since we use the word “hard” in a metaphorical sense when it describes something that is difficult. This is not a big deal, because, of course, we all do use the phrase “really hard” colloquially in this manner. But an expert might not. That is, such use being common doesn’t make it correct. Further, since “difficult” is neither a difficult nor jargony term, replacing it with a flawed colloquial expression smacks of trying too hard to make a point, and ultimately doing it poorly.
• Pinke is correct that experts find it hard to “be simple,” because expertise, by its nature, involves having complex understanding of things; but that is not really the issue. Pinker is not actually wanting to refer to *being* simple, but to *writing simply*. Nobody wants an expert to *be* simple, as they would cease then to be expert, and their writing would not be of any use to anybody. The point should be: Experts, please continue to be complex; just write more simply, please.
• The issue is also not about them writing “about their expertise”. That is, we are not talking about their autobiographical, look-how-smart-I-am essays, but about their difficulty in sharing information that is the *subject matter* of their expertise in an accessible manner.
So, while I have lengthened this response by explaining these points, I note again that my revised version of Pinker’s statement adds only 5 words, none of which are difficult or challenging for the ordinary reader. In addition, they contribute the benefit of making the sentence more correct. There is, I suggest, nothing wrong with wanting, or striving, to write correctly. And, again, I believe the premise Pinker is working from is wrong. I think that striving to be correct is the real reason that many experts tend to write using more words, jargon and complex phrasing than others might think (often rightly so) should be required.
I hope that slaw’s editors will indulge me one more time.
I’m not a lawyer and have never been a writer (i.e. paid to write or for what I’ve written).
I accept that no one can reasonably expect to find readily accessible much of what is written about subjects that require years of intense study. But does that apply to law as much as it does to numerous other disciplines?
My experience with difficult-to-understand legal writing started with one provision of a statute, which like all statutes was enacted after our legislators were given an opportunity to consider and debate it. I transcribed the Hansard record, with some appropriate highlighting (near the end) here:
http://www.uncharted.ca/images/users/ssigurdur/hansard_on_sect_13_2.pdf
The provision being debated there is not recited there. But it is recited in this decision – http://www.lrb.bc.ca/decisions/B156$1994.pdf – rendered about a year and a half later.
Our legislators are not required to have law degrees. Did those legislators understand what they were debating? I think it’s obvious that they did not (though I note one – the sponsoring minister – was a lawyer). Might the answer then be that only lawyers should be allowed to become legislators?
If we want legal writing in general to be as accessible as possible then a good place to start is with the drafting of legislation.