The Lawyer's Guide to Writing Well. Tom Goldstein

more. A century later the practice continued: Chief Justice Hale denounced padding as serving “no other use but to swell the attorney's bill,” and Sir Francis Bacon urged editing of cases—“prolixity, tautologies and impertinences to be cut off.”¹

      In the eighteenth century, Jonathan Swift rebuked lawyers for their odd speech: “a peculiar Cant and Jargon of their own, that no other Mortal can understand.” Jeremy Bentham was blunter, characterizing lawyers' language as “excrementitious matter” and “literary garbage,” even though his insistence on nouns in place of verbs contributed to the opaque quality of modern legal prose. Henry Fielding put in the mouth of one of his characters that “nothing is more hurtful to a perfect knowledge of the law than reading it.”²

      In America, the critique of legal style is older than the republic. Thomas Jefferson, a pellucid writer of legal as well as ordinary English, mocked as “lawyerish” the orotund style of the day. Late in his career, long since retired as president, Jefferson wrote to a friend about a bill he had drafted in simple language:

      You, however, can easily correct this bill to the taste of my brother lawyers, by making every other word a “said” or “aforesaid,” and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means; and that, too, not so plainly but that we may conscientiously divide one half on each side.³

      Similar criticisms echoed through the nineteenth century, an age when reformers began to purge from the common-law system the worst of the archaic forms of pleading. The rules of pleading, as stylized as movement in a Kabuki play, had contributed to the prolixity and pedantry of legal writing. But centuries of bad habits had dulled lawyers' ears and addled their brains. Simpler procedures would not yield simplified writing.

      In the twentieth century, criticism of lawyers' language intensified. In the early 1920s, for example, Urban A. Lavery, chief legislative draftsman for the Illinois Constitutional Convention, scolded his fellow practitioners:

      How many lawyers ever consult once a book on grammar or on good use of English, where they consult a lawbook a hundred times?…The lawyer too often is a careless writer; and he, before all men, might write well if he but strove to do it. But he does not strive; he “dangles” his participles, he “splits” his infinitives, he scatters his auxiliary verbs, he leaves his relative pronouns and adjectives to die of starvation far removed from their antecedents; his various parts of speech are often not on speaking terms with their best friends.

      In the 1930s three prominent law professors deplored the general illiteracy of the bar. In 1935, Karl N. Llewellyn, a professor at Columbia Law School, said: “I want every law student to be able to read and write. Half of my first-year students, more than a third of my second-year students, can do neither.” In 1936, in “Goodbye to Law Reviews,” a famous article in the Virginia Law Review, Professor Fred Rodell of Yale Law School wrote: “There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.” In 1939 William L. Prosser, then teaching at the University of Minnesota Law School, said of his students: “Very, very many of them are hopelessly, deplorably unskilled and inept in the use of words to say what they mean, or, indeed, to say anything at all.”⁴ Prosser illustrated his lament by reprinting this passage, among others, from a final examination:

      The buyer has an action for breech of warenty if he has gave notice to the seller in a reasonable time Uniform Sales Act sec. 48 after he knows of the defect there is a trade name here but here he does not give such he has an action no action for breech of warenty also after he reasonably ought to of known the warenty would be implied warenty of merchentable quality here thirty days is too long. You could not bring fittness for the purpose here because there is a trade name Holden's Beer is a trade name buyer took initiative in asking for it so reliance on seller's skill and judgement not here but merchentable not excluded according to Cardozo if this is sale and not service I think it is sale and merchentable quality in spite of trade name but no notice and so no action for breach of implied warenty of merchanteble quality in spite of trade name.

      In 1950 Arthur T. Vanderbilt, then Chief Justice of the New Jersey Supreme Court and formerly dean of New York University Law School, acknowledged “the well-nigh universal criticism respecting the inability of law students to think straight and to write and speak in clear, forceful, attractive English.”⁵ Nine years later, another frequent critic of legal writing, Dean William Warren of Columbia Law School, said at a symposium of the American Association of Law Libraries:

      I know that some of my colleagues in other institutions have taken the position that their students are able to write. However, I can only tell you what the Bar thinks about this since I have talked rather extensively with many practitioners. Most members of law firms tell me that the young men who are coming to them today cannot write well. I think the situation has reached almost epidemic proportions.⁶

      Carl McGowan, a Chicago practitioner later to become a distinguished federal appeals judge, complained in 1961 of the inability of lawyers to express themselves in English: “Most of the time our lights are hidden under literally bushels of words, inexpertly put together.”⁷

      As academic and professional law journals have continued to denounce the “epidemic” of bad writing, the academy and the bar have responded by shelling out cash. Remedial writing entrepreneurs have launched businesses to tutor practicing lawyers. Law schools have almost universally added basic writing courses to their required curricula. A new professional discipline, the teaching of legal writing, has evolved, accompanied by its own journals and murky jargon (“reader-protocols” and “revision feedback”). Language columns have proliferated in bar journals, and books for students and practitioners have flooded the market.

       Almost everyone who discusses law school students—or even, it may be added, young law school graduates—has an unkind word to say about their lack of adequate powers of oral and written expression in their native tongue.

      ARTHUR VANDERBILT

      Even the government has found it politic to act. In 1978 President Carter signed an executive order that federal regulations be written in “plain English and understandable to those who must comply with them.” Many states followed. Some large corporations began to rewrite consumer documents in plain English, both as a reaction to legislative pressures and as a public relations gimmick. But these initiatives have not proved long lasting. Principles of composition do not receive priority when new staff members are trained, and over time institutions forget the purpose of plain English and lose the skills to provide it. Every few years some government agency or another rediscovers the problem and promulgates yet another plain English requirement, as if the subject were new.

      In 1998, for example, the Office of Investor Education and Assistance of the U.S. Securities and Exchange Commission published A Plain English Handbook. In his preface to the 77-page guide, the billionaire investor Warren E. Buffett confessed that after more than forty years of studying public company documents, “too often I've been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said.” SEC Chairman Arthur Levitt recommended that legalese and jargon “give way to everyday words that communicate complex information clearly.”⁸ The primary author of the manual, William Lutz (an English professor at Rutgers who has edited the Quarterly Review of Doublespeak) offers succinct advice: Use the active voice. Keep sentences short. Avoid legal and financial jargon, weak verbs, and superfluous words. Instead of “capital appreciation,” write “growth.”

       Fourteen Causes of Bad Legal Writing

      Critics of legal writing discern not one but many causes of the “epidemic” of bad writing. To bring some order to an often confused discussion, we have distilled from the literature fourteen explanations of why lawyers write badly:

       Sociological. Every profession needs its own symbols and codes.

       Professional. Lawyers are trained to be exhaustive researchers.

       Competitive. A competitive society demands prolixity.