The Lawyer's Guide to Writing Well. Tom Goldstein

       Economic. Lawyers make more money by writing poorly.

       Historical. Creatures of precedent, lawyers do what was done before, solely because it was done before.

       Ritualistic. People must believe in the majesty of the law, embodied in its ritualistic language.

       Technological. Modern machines are responsible for slovenly writing.

       Institutional. The pressure of business is responsible for unclear writing.

       Deterministic. The way lawyers write is the best way to accomplish the law's goals.

       Pedagogical. Lawyers never learned to write well.

       Cultural. Lawyers don't read enough or know enough of their heritage to write better.

       Psychological. Lawyers are afraid to reveal themselves.

       Intellectual. Lawyers don't think clearly enough.

       Sociological

      To function as a profession, every group of practitioners needs its own symbols, rituals, and practices to set it apart from the rest of the world. Stuart Auerbach, who covered legal affairs at the Washington Post, has speculated that lawyers' language serves “as a secret handshake in a fraternity, letting others know you are one of the tribe.” Or as Professor Lawrence M. Friedman of Stanford Law School said, a “specialized vocabulary reinforces the group feelings of members…. Legal style and the vocabulary of lawyers…are indispensable for the cohesiveness and the prestige of the profession.”⁹

      This cultish quality of the language takes possession of all lawyers early in their training. What lawyer was not struck to learn in the first year of law school that “an action sounds in tort”? We were stepping away from our friends and college classmates, leaving them behind. They were becoming—“nonlawyers.” Since they were not lawyers, they were something much less: They were the laity. Alone among professionals, lawyers exclude the rest of the world in their very name for others. Who has ever heard of a “nonteacher,” a “nonjournalist,” or a “nondoctor”?

      “Strange style,” as Professor Robert W. Benson has called it, binds lawyers, in their own eyes, into a fraternity.¹⁰ In short, lawyers conform to a way of writing so that colleagues will not think the worse of them.

      The sociological explanation suggests that lawyers will never rid themselves entirely of their technical language. That lawyers, like all professionals, desire fraternity does not, however, explain writing that is incomprehensible even to lawyers themselves.

       It would be desirable that each student who graduates from this school know how to read and write. I do not consider this objective to be a modest one; on the contrary, it is extravagantly ambitious.

      GRANT GILMORE

       Professional

      The professional explanation purports to justify verbosity, obscurity, and vagueness. Lawyers are trained, as the cliché goes, to leave no stone unturned: The diligent lawyer will search through every case that even remotely bears on the problem and will digest each one in a brief or memorandum. It is considered less than professional—it might even be malpractice—to omit any possible strand of argument, or any case that strengthens that strand, no matter how tangential. Hence verbosity.

      Likewise, lawyers allege professionalism to justify much of the cryptic quality of their prose. Knowing they have a losing case or a difficult message, they express themselves opaquely to keep the courts or others from acting contrary to their clients' interests. The difficulty with this explanation is that it presumes that much that is cryptic has been made so deliberately. There is little evidence for this proposition. Nor is there evidence that intentional obfuscation is a sound strategy. Furthermore, purposeful obscurity is difficult to accomplish; it takes a writer who knows how to write clearly to achieve a convincingly murky style and still stay out of trouble.

      Moreover, this explanation fails to distinguish between a style that is unnecessarily opaque and the expression of critically important concepts that are by their nature vague. Consider the following two legal concepts:

      The legal requirement that a person act “reasonably.” The word expresses a legal standard impossible to define precisely. That is not a fault of the writer but a virtue of the law. Norbert Wiener, the eminent mathematician, argued that the law should always say exactly what it means; it should never use ambiguous concepts.¹¹ But some legal concepts—due process, equal protection of the laws, executive power—are inherently vague; to fix their boundaries for all time would rob us of the flexibility necessary to a free society.

      The Supreme Court's 1955 ukase in Brown v. Board of Education that school desegregation proceed “with all deliberate speed.”¹² Legitimately or not, the Court chose that vague phrase to avoid the serious dangers it foresaw had its language been more concrete.

      Compare these examples with this recall notice to automobile owners, a favorite example of Joseph Williams, author of Style, one of the best books on clear writing: “Sudden hood fly-up beyond the secondary catch while driving…could result in vehicle crash.”¹³ The concept is not at all complicated; rather, the drafter chose cloudy language to mask the danger. Even if the client demanded this obscurity to inhibit purchasers from demanding free repairs, the notice is irresponsible—and nothing in the law requires that kind of dismal prose.

      Defenders of the verbose style of statutory language—those overblown sentences dozens of lines long, with series of subjects (“person, organization, company, association, group, or other entity”)—insist that verbiage closes loopholes. If statutes were not verbose, they argue, courts would exploit the loopholes they are so adept at discerning. Sometimes that argument is true, and sometimes lengthy statutes are necessary. But this sense of professionalism does not justify the style in which the statutes are written; nor does it justify prolixity in documents that are not legal instruments.

       Competitive

      In our competitive society, the client wants every edge. Some lawyers and their clients insist that no argument, no matter how trivial, be overlooked or underplayed. If contracts are to be airtight, their clausestend to be prolix, multiple, and often redundant. Language in an adversary culture evolves into a precision tool for accomplishing a range of ends. But the symptoms are broader than the cause. A litigious society will depend on lawyers who follow every byway of a case, but it does not dictate the writing of every point at maddening length or in obscure style.

       Legal

      Sometimes lawyers justify legalese by pointing to the law itself. Many words have settled meanings; substituting plain language—that is, words other than those to which the courts are accustomed—can lead to litigation. For some terms, the argument has merit. The common example is the medieval requirement that a fee simple could not be transferred unless the land was sold “to X and his heirs.” A sale “to X and his children” would not be effective. But the courts are less formalistic today, and fewer words have rigid meanings. Moreover, few words, even the most arguably precise terms of art, have escaped being broken on the interpreter's rack: The meanings of herein and whereas, for example, have stirred up plenty of lawsuits.¹⁴

      In any event, the legalistic approach yields a policy at cross-purposes with itself. If legalese is so refined that it prevents litigation, the wording will probably be unintelligible to the clients who sign the instruments. Because it is unintelligible, the clients may go to court claiming that they did not understand what they were signing. At best, the term of art may win the case, but it will not prevent a case from being filed. A clearly worded contract, on the other hand, may keep the parties out of court altogether.

       Economic

      There are two economic explanations. First, lawyers use language as a tool to maintain their economic perquisites, and second, legalese is a tool to save time and money. Steven Stark, who has taught writing to lawyers and law students, argues that “lawyers