Getting Away from Legalese

November 12, 2015 8:10 AM

Despite its reputation for being dense, awkward, and repetitive, legal writing can be simple, readable, and concise when done well. Legal writing blogs, such as Bryan A. Garner's Law Prose, are here to help. Non-lawyers may also find these useful when reviewing a lawyer's work, reading legal documents, or in their own formal writing.

General Legal Writing

Lady (Legal) Writer
The Legal Writing Prof Blog
Legible
Clausehound
The (new) Legal Writer
Disputed Issues

Contracts

Adams on Contract Drafting

Intellectual Property

IP Draughts (UK focused)
IP Watchdog's Patent Drafting section

Litigation

Brief Right
The Persuader
Briefly Writing (appellate focused)

Bonus Non-Blog

Typography for Lawyers (previously)

posted by jedicus (33 comments total)

I have a friend who recently received an offer letter from Google, and I was surprised at how readable, understandable, and concise the attached legal documents for the NDA, copyright transfer (or whatever it's called) and other such documents were.

I guess most companies don't really have an incentive to make their legal documents more readable, though, which is too bad.
posted by rlio at 8:20 AM on November 12, 2015

One of my roles at my firm sees me reading and editing a lot of other people's legal writing and, while I love a good unnecessary Latin phrase as much as anyone, I hate that so much tortured legalese shows up when it doesn't need to and often when it isn't even right. We had someone who used "bequest" to mean "request" every single time (which thankfully I think has been corrected). My current pet peeve is using "to include" when what you're really looking for is "including."
posted by Bulgaroktonos at 8:20 AM on November 12, 2015 [4 favorites]

I guess most companies don't really have an incentive to make their legal documents more readable, though, which is too bad.

One of the things that the "plain english movement" argues is that simple, plainly written legal writing is actually cheaper in the long run. It can be easier to write, it's certainly easier to read, and it's less prone to errors.

Unfortunately, the incentive structure is all wrong for the attorneys. Writing long, complex documents drives up billable hours and looks impressive to clients that expect legalese. Imagine paying thousands of dollars to get a one page contract written at a high school reading level. It's quite possibly a better contract than 10 pages of dense boilerplate, but the latter meets client expectations.

This is not to blame the client, of course. Instead, attorneys should do a better job of informing clients of the benefits of clear, simple legal writing.

There are some empirical signs of progress. For example, in the patent drafting context (where we luckily have hundreds of thousands of publicly available legal documents to analyze) we can see some very positive trends.
posted by jedicus at 8:28 AM on November 12, 2015 [2 favorites]

Fellow law-talkin' guy checking in to say thank you, these resources look interesting.
posted by Sangermaine at 8:31 AM on November 12, 2015

Oh nice! I actually got (via a present from an attentive boyfriend) a copy of Garner's Modern American Usage on the strength of the DFW essay about it/"review" of it, and it's super interesting to page through.

These are great resources, thanks!
posted by aka burlap at 8:39 AM on November 12, 2015

I'm looking forward to spending some time with these resources, thank you for the post!
posted by sparklemotion at 8:49 AM on November 12, 2015

I'VE FOUND THE MOST PERSUASIVE WRITING IS THE ONE WITH THE MOST CAPITAL LETTERs AND FONT CHANGES!!!!
posted by T.D. Strange at 8:52 AM on November 12, 2015 [2 favorites]

I remember buying an aftermarket electronic part for my car and reading the warranty included on a business card-sized piece of cardstock. (Brief) legalese on one side, very readable plain English on the other side. I had never seen such a thing before, I actually laughed out loud with joy. Being a programmer, I had always assumed that professionals with graduate degrees were churning out ponderous, obtuse garbage because they had to get it to compile to run on the Legal Language Virtual Machine or something.
posted by indubitable at 9:01 AM on November 12, 2015 [2 favorites]

I first read this as "Getting away from Legolas".
posted by boilermonster at 9:14 AM on November 12, 2015 [2 favorites]

I first read this as "Getting away from Legolas".

This form is old...old as balls.
posted by jedicus at 9:16 AM on November 12, 2015 [4 favorites]

I am legally required to state in any thread of this nature that while Bryan A. Garner is excellent on the law (I own and enjoy his Dictionary of Legal Usage), his books on general English style are ignorant and reactionary and should be buried safely along with nuclear waste in areas where they will not affect humanity for the next few millennia.
posted by languagehat at 9:20 AM on November 12, 2015 [13 favorites]

I had always assumed that professionals with graduate degrees were churning out ponderous, obtuse garbage because they had to get it to compile to run on the Legal Language Virtual Machine or something.

That is what's happening, in a lot of places. When you know that a judge will interpret a phrase to mean "proposition x," because that phrase has been used to mean "proposition x" for several hundred years, it's really hard to move away from that phrase. Even if the phrase is archaic and impenetrable to laypeople, it's better than risking something in modern english that might be interpreted differently than expected. In a lot of cases (especially contracts and deeds), a 1% chance that the phrase gets misconstrued by a judge is too high, and so it's worth it to use really onerous writing, if you can use the onerous writing to get certainty.
posted by DGStieber at 9:22 AM on November 12, 2015 [6 favorites]

As a transactional lawyer, I find the the hardest part of clear writing is other lawyers. Even if I take the time to clean up a contract so it's more understandable, I'll end out having debates about grammatical clauses. For example, I'll change "in the event that" to "if" whenever I can, but some people I like to use "if", but standard language is "in the event that". Some people can't let it go. And that discussion costs money...

The one thing I refuse to compromise on is headers. I will add headers to every I, A, i, etc. as a navigational tool and to make tables of contents doable. Most old school lawyers who resisted have retired, thankfully.
posted by Measured Out my Life in Coffeespoons at 9:26 AM on November 12, 2015 [1 favorite]

Thanks! I look forward to reading, reviewing, digesting, analyzing, reflecting upon, and looking at these sources.
posted by prefpara at 9:27 AM on November 12, 2015 [3 favorites]

I am legally required to state in any thread of this nature that while Bryan A. Garner is excellent on the law (I own and enjoy his Dictionary of Legal Usage), his books on general English style are ignorant and reactionary and should be buried safely along with nuclear waste in areas where they will not affect humanity for the next few millennia.

Are they like overtly racist though? Or is it just that he's teaching you how to use a prestige form of English and is kind of smug about it.
posted by vogon_poet at 9:27 AM on November 12, 2015

I guess most companies don't really have an incentive to make their legal documents more readable, though, which is too bad.


The incentive for a lot of attorneys is to do what the client wants and avoid liability in the process. When you're confident that a particular form document works and have grown comfortable with it, it's not easy to switch.

(most of my work has been in estate planning. Just moved to comp so I'm seeing more comp and transactional stuff. YMMV in those areas)
posted by jpe at 9:30 AM on November 12, 2015

I don't think it's that much to do with wanting to drive up billables, actually. I think it's mostly driven by the lawyers themselves, rather than their clients. Even though American law schools have been teaching them not to for at least 20 years now, lawyers often use legalese because they think it sounds more intelligent somehow, or more lawyerly, or some such thing. They paid $200,000 for that Esq. after their names, and by god, they're going to sound like an Esq. no matter how stupid it actually makes them sound. So you get complete nonsense like "The plaintiff herein..." instead of just "the plaintiff," or bizarre uses of the word "such," as in, "The parties agreed to enter into a contract, and then signed such contract three days later." Those are the more mild offenses.
posted by holborne at 9:31 AM on November 12, 2015

I don't think it's that much to do with wanting to drive up billables, actually.

I should be more clear (ha!). There are a couple of different aspects of bad legal writing: length & complexity on the one hand and bad style on the other. I think length and complexity drive up billables. Archaic or overly formalistic writing (such as the examples you gave) don't directly drive up billables, but they (at least in attorneys' minds) justify high billables by making the work product seem more impressive, intelligent, lawyerly, or whatever.

Indirectly they can drive up billables when a lawyer has to review such heinous prose, either from another attorney or when re-reading their own work.
posted by jedicus at 9:39 AM on November 12, 2015

I don't know, I can definitely see your point but I think the certainty element brought up above is more important. You know exactly how language that's been in use for decades is going to be interpreted. Every time you depart from the established standard you're taking a gamble with your client's time and money.
posted by Sangermaine at 9:48 AM on November 12, 2015 [2 favorites]

Every time you depart from the established standard you're taking a gamble with your client's time and money.

Well, but you aren't -- not really. There's no actual danger that someone is going to see "if" and get confused because it might not mean the same thing as "in the event that," or think that "after" might not mean the same thing as "subsequent to." Using "in the event that" instead of "if" is done because someone wants to signal "I'm a lawyer," not because there's any real, credible likelihood of confusion.

Of course, this whole conversation is just another argument for completely abolishing the billable hour on the basis that it's an inefficient and dishonest way to charge clients. But that's probably another FPP altogether.
posted by holborne at 9:55 AM on November 12, 2015

As a litigator, my incentive is to get the best outcome for my client, so that they'll hire me the next time they get sued. In the vast majority of cases (if not all of them), the key to the best outcome is legal writing that is clear and precise and easy to understand. A bunch of superfluous heretofores or inter alias don't help anything and, at worst, they cloud the message you're trying to communicate.

Any lawyer who is motivated by a need to sound more pompous or "lawyerly" needs to wake up.

Now, can we please set a quota on adverbs?
posted by Ben Trismegistus at 10:05 AM on November 12, 2015

I always assumed mastery of "legalese" was an important skill for convincing the general public that lawyers were worth what we pay them. If it weren't, anybody who could write a Buzzfeed listicle could write a contract... and just as cheaply.
posted by oneswellfoop at 10:38 AM on November 12, 2015

I used to pay junior associates a quarter every time they were able to use the phrase "mutatis mutandis" in a contract with a straight face.

There's a hazard that people may not realize in using plain language. Most plain language is excellent. However, I have worked for a SENIOR PARTNER IN A RESPECTED LAW FIRM who refused to define "business day" even though he used it as a capitalized term on the theory that "everyone knows what it means." Well, actually no, in cross border contracts everyone might not know what it means and fuckinghell what are you doing capitalizing a term and not defining it?

I was drafting prospectuses at the time that the SEC started its Plain English initiative and it has helped a lot but the fact is that no one reads prospectuses, least of all the people who need to most and for whom Plain English was designed.
posted by janey47 at 10:43 AM on November 12, 2015

I always assumed mastery of "legalese" was an important skill for convincing the general public that lawyers were worth what we pay them. If it weren't, anybody who could write a Buzzfeed listicle could write a contract... and just as cheaply.
oneswellfoop

You don't need a lawyer to write a contract. It's not illegal or anything to write your own. What you're paying for is the knowledge of how to do it in a way that best protects your interests and achieves what you're trying to do.

It's along the lines of "an ounce of prevention is worth a pound of cure", in that you pay to have a professional make sure your contract is good in the beginning rather than risk legal fighting later.
posted by Sangermaine at 10:55 AM on November 12, 2015 [1 favorite]

Clausehound

Santa's latest sidekick.
posted by cynical pinnacle at 11:31 AM on November 12, 2015

>They paid $200,000 for that Esq. after their names

This is ironic. No one "gets" an Esq. after their names. "Esq." is a self-assumed affectation.

What we do get is a J.D. or an LL.B., usually the former. Another irony: lawyers here in the U.S. do not use those initials after their names, even though they earned them.
posted by megatherium at 12:38 PM on November 12, 2015 [1 favorite]

This is ironic. No one "gets" an Esq. after their names. "Esq." is a self-assumed affectation.

Theoretically, it's a breach of etiquette to put an "Esq." after your own name on a letter or papers. You put the Esq. after opposing counsel's name, but never your own. (A quick glance through the papers on my desk right now confirms that some lawyers observe this convention, some don't.)
posted by holborne at 12:49 PM on November 12, 2015

Theoretically, it's a breach of etiquette to put an "Esq." after your own name on a letter or papers.

My firm sublets office space to some small firms/solos, and recently ordered office name plates for everyone. All the subletters got "Esq." and none of us did, which I'm fine with.

I've signed my name with Esq., I think, exactly once, in an angry letter to my landlord that I wrote a couple days after being sworn in. To be fair, though, I was just crawling around on the floor of my office looking for a Skittle that had rolled away, so I'd feel pretty silly putting a fancy title on anything I wrote just now.
posted by Bulgaroktonos at 1:14 PM on November 12, 2015 [3 favorites]

To be fair, though, I was just crawling around on the floor of my office looking for a Skittle that had rolled away, so I'd feel pretty silly putting a fancy title on anything I wrote just now.

I was doing the same thing yesterday, only it was a mini-Reese's peanut butter cup and then I banged my head on the desk getting up.
posted by holborne at 1:51 PM on November 12, 2015 [1 favorite]

refused to define "business day" even though he used it as a capitalized term on the theory that "everyone knows what it means."

Ugh, that makes me itchy to even read!

In this context, it's interesting that, as of this writing, the most recent post on the Lady (Legal) Writer blog is on the Lockhart matter, in which, as she says, "a comma may mean many extra months in prison."
posted by Tentacle of Trust at 5:00 PM on November 12, 2015 [2 favorites]

Part of my job involves looking at opinions from the US Court of Appeals for the First Circuit in Boston. I always make a point of reading the ones written by Judge Bruce Selya, who is known far and wide for his writing style.
posted by adamg at 6:26 PM on November 12, 2015

I'm a lawyer for kids, and that has made me a better writer and a better oral advocate. Because everything I say and write and do, I have to be able to explain in a way that a thirteen year old could understand. I know that a lot of what goes on in court, my clients don't follow at all as it's happening to them. And then they're expected to make life-altering decisions based on proceedings that they couldn't possible understand. Which is why I always offer to let my clients read the things I file for them, and some of them actually take me up on it, and then I have to sit down with them and go through the documents and explain what everything means. And I always tell them that, even during court, if they have a question, all they have to do is tap me on the shoulder, and I will shut down the entire proceeding and ask for a recess and explain to them what's happening and answer all of their questions. Some of them just nod and then zone out in court, but some of them actually do ask, and then I explain. And after court, they always have questions, and if you give them the chance to ask, they will ask you to explain everything that has just happened to them, and it will become clear that they had absolutely no idea what was happening when court was actually in session.

So I've started trying to get in the habit, as much as possible, of writing and saying everything the simplest way the first time, both in pleadings and during court proceedings, because then it's easier to explain and answer questions about it later. Sometimes it can't be helped, because I have to say "probable cause" and "evidentiary" and and cite to relevant cases by name or rules by number, and sometimes I have to recite the magical legalese incantations that point out to the judge that she's about to do something that will get her overturned on appeal without actually threatening her. But most of the time, I can use people's names instead of saying "the respondent," and I can say, "the police officer shouldn't have done X" instead of (or at least in addition to) saying "relevant precedent tells us that X is a violation of the statutory and constitutional requirements," or whatever.

And you know what? The judges, and especially opposing counsel HATE it. They want me to say it the lawyer way, the way they're used to, the way we've always done it, the way that makes them feel like all those years of school actually made us all smarter. And they definitely don't want me taking the extra 20 seconds to say it in plain English so that my clients actually have a prayer of understanding what's happening to them. And I've had actual yelling directed at me for asking for too many recesses so that I can make sure my clients understand what's happening. The other adults in the room, learned lawyers all, get SO ANGRY because they think I'm wasting their time.

Luckily for my clients, I get a cheap little thrill out of annoying opposing counsel, so their irritation works in my clients' favor.
posted by decathecting at 6:31 PM on November 12, 2015 [22 favorites]

Decathecting, your clients are lucky to have you. Thank you for doing such important work and figuring out ways to empower them in such life-altering decisions.
posted by hurdy gurdy girl at 4:22 PM on November 14, 2015