The Lawyer's Guide to Writing Well. Tom Goldstein

like lawyers, they might have trouble charging as much for their work.” As long ago as 1939, Fred Rodell insisted that the legal trade “is nothing but a high-class racket” because the public is “scared, befuddled, impressed, and ignorant.”¹⁵ That is why lawyers write in legalese and produce mounds of paper—at least when paid by the hour. If clients knew what the Latin phrases meant, they would never pay for the lawyer's services.

      Such arguments are speculative. Whatever may once have been the truth about Latin incantations, law has become so complex that clients who receive advice in the form of memoranda or letters, or who buy legal instruments such as wills, are more likely to be grateful if they can understand what they have paid for. Although lawyers were once paid by the word, in America this practice died out long before the turn of the twentieth century. Billing is based on time, not on word counts. But it takes more time to produce a shorter, clearer, more readable document, because revising and editing are time-consuming. If generating higher legal bills were the goal, lawyers would produce shorter documents, not longer ones.

      A second economic point is made by Lawrence Friedman, who suggests that legal terms of art were invented as helpful shortcuts.¹⁶ Legalese is thus an efficient way to write, one that saves lawyers time and saves clients money. The validity of the argument depends on how much legalese is used and if the audience for whom it is intended can understand it. Using technical terms in front of the court surely does save time—lawyers would appear foolish, and feel foolish, testing out synonyms for stare decisis or collateral estoppel. But an opinion letter filled with such terms is not necessarily efficient. “Why force your reader to parse and chart your prose?” asked Mark Matthewson, an Illinois practitioner, in an article addressed to prospective lawyers: “The writer should be doing that work, not the reader. Think of it in economic terms—there will almost always be fewer writers of a document than readers, and the interests of efficiency will surely dictate that the writers, not the readers, translate the prose into simple form.”¹⁷

       Historical

      Lawyers are conservative, innately cautious, and often do what was done before solely because it was done before. As Jacques Barzun suggested to us, lawyers use strings of synonyms out of habit. We all know that the hold of habit is strong, but it rarely justifies what we are doing. Justice Holmes once wrote in a different context, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”¹⁸

       Ritualistic

      Because law is a system of social control, it depends in a democracy on faith—not guns—to achieve its purposes. People must believe in the majesty of the law. The language of the law is, according to this argument, a form of magic, a ritual incantation. (Centuries ago, the ritual function was all there was. The litigant or lawyer would recite a formulaic defense, and if he stumbled or misspoke, his misstatement was taken as a sign from God that his cause was wrong.) In some contexts even today, such as the taking of an oath (“the truth, the whole truth, and nothing but the truth”), ritual phraseology “is designed to convey, not information, but emotion—fear, awe and respect,” says Lawrence Friedman.¹⁹ But in a secular age, such talismanic purposes of language will necessarily be few.

      Some defenders of legalese argue, however, that customers may draw comfort from the archaic. An employee of Siegal & Gale, a New York firm that specializes in simplifying the language of legal instruments, told us that some clients distrust documents that do not have the reassuring “whereases” and “heretofores.” And Peter Lubin, a Cambridge writer and lawyer, wrote in the New Republic that he was quite impressed when the lawyer representing him in answering an unfair small claims action produced the following lines: “Now comes the Defendant and for his answer denies, Each and every allegation of the Plaintiff's complaint. And further answering says, that if he ever owed the Plaintiff anything, he owes the Plaintiff nothing.” Lubin extolled this language as “beauty on the level of the Bible and Shakespeare,…. part of what creates the mystery and majesty of the law.”²⁰

       What is disturbing is that law schools…find themselves in the situation that even the good writers do not know the difference between “its” and “it's.”

      DAVID G. TRAGER

      This is more whimsy than sense. There are few such phrases and, we suspect, even fewer admirers of them. Again, magic explains only phrases, not the panoply of writing faults in which lawyers regularly engage.

       Technological

      In the early 1960s, David Mellinkoff blamed the typewriter for contributing to verbosity: fingers waltzing along a keyboard could turn out copy far faster than a hand cramped from dipping a pen in an inkwell. He also noted that electronic data retrieval, like its predecessors “in the arts of availability,” is “ruled by a corollary of Parkinson's Law: the data to retrieve increases as it becomes more retrievable.”²¹ Since then, the photocopier, the computer, the optical scanner, the facsimile machine, and the Internet have contributed to the ease with which lawyers can quickly create long documents. Because they can get words down on paper so easily and without scanning every line, lawyers may be less likely to take the time to consider style and content.

       Institutional

      Modern law practice is a business, with institutional imperatives of its own. Few law firms working at a leisurely pace survive. From the most senior partner to the most junior associate, private law firms (and most public law offices too) are pressured to crank out paper. The pressure of business means that human energies are focused more on technical matters—meeting deadlines, checking footnotes, getting documents printed—than on thinking. Fewer hours are available for thinking through a problem, writing down one's thoughts, and editing a series of drafts. It is far easier, and seemingly safer, to borrow from previous documents than to rethink and rewrite. Add the lawyer's fear of originality, and the consequence is that lawyers reproduce not just words from a document but its tone and style as well. To be sure, boilerplate may be appropriate, but it does not belong everywhere.

       Students seem more than ever to think that some kind of human right is violated when we hold them to high writing standards.

      RICHARD K. NEUMANN JR.

      The institutional pressure can be even more unremitting on the small-firm and solo practitioners. Always pressed for time, often competing with large firms that can drown them in paper, the small-firm practitioners understandably, if unfortunately, are inclined to regurgitate old copy.

      Other institutional habits also diminish the quality of writing. One is the tendency, observable at nearly every level of every institution (it is by no means confined to law firms), to ask someone lower on the organization chart to write for someone higher. Outside the legal profession, this practice often goes by the name ghostwriting. A generation ago, Carl McGowan commented on “the extraordinary degree to which the successful lawyer may get out of the habit of writing anything himself…. Some of our best men at the bar may be doing very little initial composition; and we all know how the first draft tends to set the style and tone of any piece of writing.”²²

      Still another development that multiplies words is the expansion of staff. Many of the lawyers and judges we have spoken to have pointed to the baneful effect of more law clerks on the length and quantity of judicial opinions. Former Justice Richard Neely of the West Virginia Supreme Court said that hiring more clerks increases the level of “pseudoscholarship”: “While judges used to be good old boys who penciled out their opinions in longhand, now they simply figure out the bottom line and tell some magna cum loudmouth smartass clerk to cobble up the reasons in an opinion. The clerk has little idea how everything comes together. But he knows how to use a library. Thus, the ever rising level of crap in reported cases.” Similarly, Patricia M. Wald, long-time Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, told us that judges are understandably reluctant to disappoint the clerk who has researched and written a lengthy memorandum about a pending case. So they incorporate