The Lawyer's Guide to Writing Well. Tom Goldstein

may be unaware. We do not suppose that those who absorb the contents of this book will match Brandeis, Cardozo, or Holmes as stylists. But we do believe that diligent readers will become better writers and that they will be equipped with the means of improving further on their own.

      Three more observations about the book's aims:

      1 Because writing is an art and a skill, a process and a business, an end in itself and a means to other ends, we do not confine our discussion to rules of usage. We propose that readers consider context and process as well. In Chapter 2, we discuss the causes of poor writing and the historical critique of legal writing; in Chapters 3 through 7, the way writers write—individually and in the office; in Chapters 8 through 11, the rules and techniques for polishing prose; and in Chapter 12, how to make your writing memorable.

      2 Because every lawyer composes for many purposes and different audiences, our advice should not be taken to apply equally to every kind of document and under every set of circumstances. We know that lawyers are busy and that they do not have the novelist's luxury of time. The lawyer who must prepare overnight a response to a motion for a preliminary injunction obviously cannot put the draft aside for days before returning to reconsider it. Rules of grammar and usage apply to every brief, memorandum, and pleading, but the process by which those papers are composed will depend on the time and resources available.

      3 With minor exceptions, we do not consider the art of drafting legislation, contracts, or other legal instruments in “plain English,” understandable to the lay public. Our premise is that lawyers' thoughts and manner of expression are so disordered that even other lawyers cannot understand them. As lawyers learn to write well, inevitably the public will learn to understand them also. But that is not the starting point. Lawyers must first learn to talk to each other.

      Mindful that we have chided scores of lawyers by using their writing to illustrate problems and solutions, we have sought assiduously to eliminate our own mistakes. But writing about writing errors is always dangerous because the critics invariably commit their own. Sally Powell, the book review editor of Business Week for many years, never let her writers attack typographical errors in the books they were reviewing, because as soon as they did, she said, similar mistakes would creep into the magazine.

      On occasion, we confess, we have led with our chins. In our survey, for example, we asked the question: “Do you have other thoughts on legal writing that you would like to share with us?” David L. Shapiro, a professor at Harvard Law School, chided: “Only that the ‘sharing of thoughts’ should be left to the headmasters of progressive secondary schools.”

      We hasten to acknowledge that mistakes are sometimes just mistakes and that not every wooden phrase or fuzzy thought means that the writer is thoughtless or poorly trained. We recognize that mistakes inevitably remain in this book too. We hope that by adhering to the principles we propound, we and you can learn to become more acute at spotting and eliminating the mistakes that slip through.

       2 DON'T MAKE IT LIKE IT WAS

      Around the country, a select group of court watchers indulges an arcane hobby: collecting lawyers' dreck. A West Coast journalist sent us this specimen:

      That on November 10, 1981, at 1:00 p.m. while plaintiff was a business invitee and customer, present at that certain real property, a Ralph's Market, located at 1725 Sunset Blvd., Los Angeles, California, and that at said time and place, the defendants, and each of them, carelessly and negligently owned and operated and maintained and controlled the said real property and particularly a shopping cart thereof, and the said cart was at said time and place in a dangerous condition, because there was no “seat flap” in the “upper” basket and a can fell through, breaking plaintiff's foot and it was unsafe for use by persons, including plaintiff, and directly because of such condition, and the negligently and carelessly maintained condition thereof the plaintiff was caused to and did sustain injuries and was proximately injured thereby as hereinafter set forth.

      Fred Graham, a former Supreme Court reporter for the New York Times and CBS-TV and now chief anchor for Court TV, collected examples of particularly ghastly “questions presented,” the required statement of the issues in each petition for certiorari, “until,” he says, “I got discouraged.” Here are two of his favorites:

      Whether, consistently with the due process clause and the equal protection clause of the fourteenth amendment, a state court may deprive a party, without compensation of his or its constitutional rights to property by validation of an invalid court determination through the aegis of res judicata, wherein such principle of res judicata was actually a premise for invalidation and nullity rather than the aforementioned validation.

      Does it violate the fourteenth amendment of the United States Constitution for the highest court of the state, here the supreme court of Pennsylvania, when a petition for leave to appeal to it from a decision of an intermediate appellate court, here the superior court of Pennsylvania, to refuse allocatur even though the petition for such sets out clearly and unambiguously a claim of denial of due process of law guaranteed by the fourteenth amendment, and a claim that such refusal violated the Pennsylvania constitutional prohibition against impairment of contract, and a claim that a refusal of such a review is a violation of the corporation's right to a jury trial guaranteed at some stage of an arbitration proceeding by local case law where the jurisdiction of an arbitrator has been challenged?

      Teachers, too, have their collections. On a constitutional law examination, one hopeful student referred to a “probable certainty.” Another cleared his throat: “First of all, the first problem to address is…” A classmate opined that “the right to publish and distribute political ideas is a tenant of the Constitution.” Another declared: “Treating AIDS sufferers and carriers as a suspect class would most likely not fly.” Still another informed her bewildered professor that “the state has a valid and compelling interest in keeping its locals clean and thus affixing stickers to telephone poles and lampposts may be valid.” The professor's eyes widened upon reading: “Concededly, the AIDS epidemic is a compelling governmental objective,” and stayed wide upon encountering: “The state has a conceivable interest in preventing bigamy or family values.” Other students noted that the statute could not “past muster” and that an assumption may help “to access the situation.” One advocated “repealment”; another spoke of a policy's “wiseness.”

       I want every law student to be able to read and write. Half my first-year students, more than a third of my second-year students, can do neither.

      KARL N. LLEWELLYN

      Much of the current dismay over lawyers' writing reflects a belief that their writing went to hell only recently, that lawyers were once known for their elegant style. This view misses a good deal of history.

      It reminds us of the story Edward I. Koch, the former New York City mayor, has often told about the elderly woman who stopped him on the boardwalk at Coney Island. She poignantly related how life had deteriorated. Crime was up, the air was dirty, the water befouled. “Make it like it was,” she implored. “I'll try,” Koch responded. “But it never was the way you think it was.”

       A Short Retelling of the Attack on Legal Prose

      Historically, lawyers' prose has never been free from attack. In fifteenth-century England, Chief Justice John Fortescue declared that the judges were giving effect to forms written in unintelligible language even though none could remember the reason for the language. In the sixteenth century, the lord chancellor stuffed a plaintiff's head through a hole cut in a stack of pleadings and marched him around Westminster Hall with the pages drooping over his shoulders. This public humiliation was a double insult: The pleadings were drawn by