Richard Wydick has spent much of his professional life trying to change how lawyers write. In 1978, he led an article for the California Law Review with this broadside: “We lawyers cannot write plain English.” That piece created such a positive response that he turned it into a foundational book on legal writing that’s now in its fifth edition.
Wydick started traveling the country to spread the virtues of clear prose to other lawyers. In 1981, he went to Houston to give a seminar to the in-house law department of an oil company. Halfway in, one of his older listeners interrupted. “Son,” the man said, “if you draft a will for your client, and you call it a will, and you say nothing about the soundness of his mind, and you give him the will in a clean brown envelope, you can charge him $50 for it, and he will pay it and go away satisfied. But if I draft a will for my client, and I call it a Last Will and Testament, and I recite that he is of sound mind, and I give it to him in a leather cover with his initials on the front, I can charge him $500 for it, and he will pay it, and he will tell people that I am the smartest probate lawyer in the county.”
“That Texas oil lawyer,” says Wydick, now professor emeritus at UC Davis School of Law, “teaches us that the law requires a touch of the circus.” By 2100, about half the world’s languages will be lost, say linguists; one dies every 14 days. Don’t bet legalese will be among them.
Because That’s the Way We’ve Always Done It
The trouble starts before law school, says Sacramento attorney William Wright, who also teaches legal writing at Lincoln Law School of Sacramento. Students are showing up who, after four years of college, can’t spin out comprehensible prose. “We shouldn’t have to teach you how to write,” he says. “We should be teaching you the legal concepts.”
Worse, legal writing rides the back of the bus in law-school curriculums. In most of them, about six or eight hours is devoted to writing skills — “that’s six or eight hours out of 90,” says Joseph Kimble, who taught legal writing for 30 years at Western Michigan University’s Cooley Law School and today delivers writing seminars to lawyers and business groups. Even then, those hours have to include a broad range of documents and topics, including legal research, legal analysis, statutory construction, citation form and others. It can’t help that, according to Wydick, most schools treat legal writing faculty like “second-class citizens,” paying them poorly and hiring on 1-year contracts.
Once they do get a job, some young lawyers think they can bury inexperience under jargon. Wright has supervised many who are fresh from law school and says they sometimes write obliquely because they don’t understand the legal concepts well enough to explain them plainly. Then there are the status-quo defenders who think writing more accessibly is a surrender to the Philistines: “Using simple words … reduces the intellectual level of statutes,” wrote one attorney in the June 2012 issue of industry periodical The Legislative Lawyer. “I would be embarrassed to admit that my job is to write dumbed-down statutes. Drafters are trained professionals and should write like trained professionals, not like high school students.”
“Using simple words … reduces the intellectual level of statutes,” wrote one attorney in the June 2012 issue of industry periodical The Legislative Lawyer. “I would be embarrassed to admit that my job is to write dumbed-down statutes. Drafters are trained professionals and should write like trained professionals, not like high school students.”
Responding in a later issue, Kimble demurred: “It’s not dumbing down to write clearly for your reader in legal, government and business documents. No fewer than 25 studies show that readers of all kinds — judges, lawyers, clients, consumers — strongly prefer plain language to the old style, understand it better and faster, are more likely to comply with it and are much more likely to read it in the first place.”
Plus, tradition has the lure of an elixir — if something has been done so long, there must be a reason, goes the thinking. Wydick recounts his experience as a new lawyer at a respected San Francisco firm. His supervising partner asked him to write an affidavit, which in that firm had always started with a line stating where it was signed, as in (“City and County of San Francisco) ss.”
Wydick wanted to know what “ss” meant. He searched the law library but found nothing. So he left it off his first draft. His supervisor read the statement and scowled. “Where’s the ss?” he demanded. Wydick explained, but the boss was unmoved. “I don’t know what it’s for either,” he said, “and I can’t justify charging our client to go find out, so just put it on there, as we always do.”
No to Legalese, Yes to Terms of Art
Still, not all words that draw blank stares from civilians are an affront to lucidity. Every profession has shorthand, phrases that have precise meaning and pack a lot into a small space. Take res ipsa loquitur, says Sacramento real estate and business attorney Mitch Abdallah. It means “the thing speaks for itself.” If a bail of hay falls on someone’s head, someone was negligent even if we didn’t see the negligent act. And Wydick admires “hearsay,” which is a statement not made by the person testifying but that’s offered as evidence to prove something. “Any word that can say all that deserves our praise and deference,” Wydick notes.
But lawyers who want to put on a show for the client to justify their rates are drawn to words like herewith, pursuant to, in emulationem vicini (which is just envy or spite in English), whereas and aforementioned. Those either have simpler substitutes or aren’t needed at all, say Wydick and others. Another favorite of contract writers is inserting two words with identical meanings: null and void, alter or change, force and effect, full and complete.
Language Wins and Loses Cases
Lawyers who offend judges fare about as well as ballplayers who attack the ump. So it should matter a little that many justices say they hate arguments laced with jargon and pompous constructions. One reason is the increasing volume of what they have to read — the number of federal court cases, for example, has zoomed up 20 percent since 2004.
A few courts have let lawyers know they’re unhappy. This March a federal judge blasted attorneys on both sides of one case for wordiness in their court filings. That came after one side filed a 175-paragraph brief with 1,400 pages of exhibits and the other responded with 303 pages. That same month, the Supreme Court nearly disciplined a lawyer for writing a jargon-filled brief.
Some judges must dream of the punishment delivered by one English chancellor in 1596 for an obtuse court document. According to Wydick, the judge had a hole cut in the center of the brief and the lawyer’s head stuffed through the hole. The offender then was led around on exhibit to Westminster Hall guests.
But that’s not as bad as having judges say nothing and rule against the offending side because they’re frustrated. “I think most judges say clear writing does make a difference, especially in close cases,” Kimble says.
“Any profession has its jargon … I can’t bear it. I don’t even like legal Latin. If you can say it in plain English, you should.” Ruth Bader Gindsburg, U.S. Supreme Court Justice
The Supreme Court Justices seem to think so. A 2010 issue of the Scribes Journal of Legal Writing published the views of eight of the nine judges on whether clear writing can make or break cases. They didn’t hide where they came down. “It’s not like judges know what the answer is,” Chief Justice John Roberts told an interviewer. “I mean, we’ve got to find it out. And so when you say, ‘Can bad writing lose a strong case,’ if it’s bad writing, we may not see that you’ve got a strong case.” Justice Ruth Bader Ginsburg was even more blunt: “Any profession has its jargon. The sociologists have lots of fancy words, and some of them think somehow that puts them on a higher plane. I can’t bear it. I don’t even like legal Latin. If you can say it in plain English, you should.”
Roberts suggests lawyers will know they’re ready to argue in court when they can make their case to their own family members. If you can’t explain it to them, you’re not ready, he says. “You ought to be able to tell them in simple English … exactly what it’s about and why you should win. And if they don’t leave that case and say, ‘Oh, I see why,’ you’ve got to do some more work.”
Demand to Understand
Kimble thinks legal writing has gotten incrementally better with
growing awareness of the importance of clarity and simplicity.
Still, he says a leap forward will require pressure on several
fronts — from attorneys’ supervisors, the media, judges, the
American Bar Association and the public. “Whether it’s a
mortgage, commercial contract, a lease, a car rental agreement or
a will: If what you’re reading isn’t clear, demand to
understand,” Kimble says.
Sacramento-area attorney Drummond McCunn suggests pushing lawyers to more regularly explain legal issues to the public would help. When he attended the Pacific McGeorge School of Law, he worked in a family law clinic that offered pro bono services, often to people without a lot of education. That forced him to talk in a way people understood, which comes through in the way he talks now: He seamlessly slips in definitions (“pro bono, that means free services”) and follows every point with, “Did that make sense?”
Ultimately, keeping legal language accessible may be about more than winning cases — it could have something to do with the quality of our democracy. “I’d love one day for someone at a gas station who is not a lawyer to come up to me and say … ‘You know, I read your opinion, and I don’t agree with you,’” Supreme Court Justice Clarence Thomas told Scribes. “Wouldn’t that be wonderful?”