Over at the Puddle, Andy Mergendahl pounds away at the myriad challenges to his “plain language” views on legal writing.
Who’a [sic] afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.
But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.
Andy’s “suspicious” attempt to rationalize those who don’t see it his way by attributing it to fear, and thereby ascribing fearlessness to himself, doesn’t serve to strengthen his argument.
The title headings of his points are:The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary.
That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view.
- My readers and I are smart, so there’s no need to “dumb down” my writing.
- My clients are paying me to write impressive documents. That requires fancy language.
- I refuse to surrender “good” writing to the witless masses and their spineless apologists! This is all just liberal politics at work!
- Rules must be correct, otherwise they wouldn’t exist. So stop encouraging people to break them!
- You are wrong! I win! Neeners!*
- You’re wrong! You just are! I know this!
Had these been written by, say Brian Garner, I might characterize them as strawmen, but in a gesture of magnanimity and the liberal application of Hanlon’s Razor, no negative characterization is levied. Despite Andy’s post bearing the banal scent of butthurt, the issue is worthy of discussion. As Sam Glover satirically wrote in response to a comment there castigating Andy for his persistence,
You’re right.. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.
Indeed, blogs about law practice are the appropriate place to argue about legal writing, and so I champion Sam’s cause.
The problem with Andy’s approach is that his basic premise is deeply, irreparably flawed. Andy explains his point of view:
[L]egal writing should be as easy to understand as possible to the widest audience possible.
A very egalitarian perspective indeed, but a very mistaken one. Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge. Briefs are not novellas, to be read by Court TV viewers with poor reception. Contracts are not magazine articles to be skimmed by those with passing fancy.
This said, it doesn’t mean that Andy is entirely wrong. Far too often, lawyers grow unduly enamored of words they feel are “lawyerly,” tossing in an errant “wheretofore” because it would take more effort to use more effective transition. As Andy argues, many lawyers, often with youthful abandon, toss about the words they believe to be more lawyer-like so that their writing appears to conform with their limited grasp of legal writing.
Also like Andy, they are wrong. Incomprehensible strings of lawyerish words may seem “learned” to non-lawyers, who mistakenly assume that the only reason they don’t have a clue what the lawyer is writing about is their lack of a law school degree, but are nothing more than gibberish.
These two views, overly simple and overly lawyerish, reflect the polar extremes of the argument, and both are similarly misguided. Legal writing that serves to clearly and precisely convey the message to the judge is good writing. Writing that does anything else is not.
Or to put it another way, writing that thrills the masses, moves them, makes them laugh, makes them cry, becomes a part of them, but loses in court, is not good legal writing. That’s because we are lawyers, and our duty is to present our clients’ cause to the decision-maker as effectively as we can.
Wherefore, your affiant sayeth naught.
* From the Urban Dictionary :
| 1. | neener | ||
(knee-nuhr) interj. An interjection typically used to taunt, ridicule, or boast. “No thanks to you, but I was able to score the last tickets to the show tonight, and you’re not going with me, so neener!” | |||
| 2. | neener | ||
Neener (noun) – A neener is a person who takes the fun out of things, usually just by being who they are. They usually will cite some lame reason like “They shouldn’t give that free stuff to the employees, it should be used by the IT department” | |||
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I have to agree with you – I am not a lawyer and I don’t think laws should use simple language that makes it easy for me to read at the expense of nuance. Sure, fancy words just for the sake of sounding impressive is silly, but sometimes an obscure word is the only word that can accurately communicate the essence of an idea. If I can’t understand the way a law is written – it is my job to look up the words I don’t understand ( dictionaries were made for a reason) or seek qualified advice.
Even if laws were written in simple language, lay people still aren’t going to understand them fully since they are bound and excepted by case law – which no lay person would ever read though. Even if they did read it all, it is going to be difficult do understand, no matter the level of language used.
You spent 8 years in college and thousands of hours after that researching to understand the laws – does anyone think they can understand the law that well if it were only written using smaller words?
Eugene Volokh wrote a great post (which I would link if I could find it) explaining why the argument that law should “mean what it says” couldn’t possibly work. It’s not an elitist thing, but experiential in dealing with ten thousand perspectives and scenarios where the same words can mean or apply completely differently.
I too look up words all the time. See how I included a definition of neener? That wasn’t accidental, but included to make a point, that words have meanings and despite common practice of substituting some “general sense” of what a word means, we need to maintain the specific definitions of words or we end up in an Orwellian nightmare. It doesn’t matter if it’s plain or fancy language; it does matter if it’s clear and precise.
I haven’t read Andy’s blog post, but I do subscribe generally to the plain language law movement. Your post makes good points, but I’d like to also note a few things. I’d like to hear any responses or thoughts you have on them.
You write, “Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge.” First, your post suggests that this purpose is somehow incompatible with the purpose that “legal writing should be as easy to understand as possible to the widest audience possible.” Indeed, if the widest audience possible can easily understand a legal document, then a learned judge would be part of that audience, no?
My second concern with this statement is that the plain language movement is not about court briefs, but about basic contracts and laws. Tenants should not feel the need to contact a lawyer to interpret a lease before signing one. Citizens should not need to call a lawyer to “translate” a statute for them. The law should not design a system that perpetuates a constant need for lawyers. That seems rather twisted, almost like planned obsolescence or an unlawful tying arrangement. Instead, the law should aim to minimize the need for lawyers so that citizens can get on with their lives.
On your first Q, writing for the widest possible audience is the antithesis of what a lawyer should want to do. What is comprehensible en masse is vague and amorphous to any individual. We can’t afford to screw our clients by writing for any audience other than the decision maker.
As to your second Q, the standard “people shouldn’t need a lawyer to understand legal stuff” argument, the fact is that people aren’t equipped to understand the legal stuff. They want to be. They think they should be. They believe they are. But they’re not. Take any constitutional amendment and ask a regular guy what it means. He’ll tell you it means what it says. Bring up a nuanced scenario and the “means what it says” assertion immediately falls into the toilet. Put two people in the same room and get three completely different “it means what it says” definitions.
The fault isn’t the laws, but the limits of language, the scope of education and understanding, bias and the nature of humans to create situations too complicated to fit into simplistic conclusions. Or to put it differently, don’t blame the law for being sufficiently complex to address the crazy shit people come up with.
I read that great post by Volokh you are talking about and I definitely agree with it. While it is sometimes very frustrating to someone who isn’t a lawyer to read a law and go “WTF?!?” after reading about some sensational case – it generally starts to make sense and sink in after reading beyond the headlines and plain text of the law and reading how it has been applied in the past and reading a few supreme court decisions (reading supreme court decisions is procrastination for a programmer – even they are more entertaining than QA work). However, I have to admit there are a few places I really wish the law “meant what it says” – namely when pertaining to the 4th Amendment and the Commerce Clause. No matter how much reading I do on those two subjects, it still boggles my mind where all these exceptions come from.
Regarding your first response, your comment that we cannot write for any audience other than the decision maker does not address my point that this is not necessarily an “either-or” issue. You have not provided a reason why legal writing could not be both plain language *and* judge-oriented. Additionally, when I talk about plain language law, I’m not concerned about situations in which the writer and reader each have a legal education, like with briefs. I’m concerned with the situations in which at least one reader will not have that education, like contracts, statutes, or administrative rules.
Regarding your “en masse” thought, as you note later in your comment, that problem is a limit of language generally. Therefore, I am unclear how overly complex legal language would be any less of a problem than plain legal language. Furthermore, we already rely on “plain meaning” as a legal doctrine. Even though individuals will understand a sentence slightly differently, the sentence can still be written so that it has a plain and ordinary meaning that the average reasonable person will recognize. The law already recognizes that often when someone claims “it means what it says,” it really does mean what it says, and lawyers should embrace that.
Regarding your second response, I agree that not everyone is capable of understanding legal writing and that the limits of language are part of the barrier. For these reasons, we will always need lawyers, and rightfully so. But the plain language movement, for me, is not about the elimination of these issues. I’m not asking for contracts written at a third grade reading level. I’m simply asking for legal writing that doesn’t *add* to those problems and, if possible, attempts to reduce their effects.
Sigh. Okay, we’ve established that neither brevity, nuance nor irony are your strengths. Let’s try again. When we try to express something that is comprehensible to people with varying backgrounds, educations, prejudices, in plain language, we need to write with sufficient breadth that these varying readers will have a chance at understanding what we are trying to convey. That’s a fine thing in general, although even our best efforts will necessarily fail because no universe of readers will be sufficiently similar that any complex idea can be communicated to all in the same way.
As lawyers, however, we cannot afford to have the judge fail to understand our argument. We write for them, knowing their education, background and hopefully prejudices in order to persuade that one individual. Others won’t understand, but that’s okay as long as the one person who must understand does.
As for your being “concerned” with situations where a reader lacks the education, your shooting in the dark. You cannot know whether a person of unknown comprehension will understand regardless of what you write. Whatever vagaries you write in plain language will later be dissected by lawyers and judges, and what may (or may not) serve to inform a member of the public will prove meaningless when subject to legal scrutiny.
As for my “en masse” piece, it’s not about “overly complex legal language,” but clarity and precision. They’re different things. I can explain it to you, but I can’t understand it for you.
What you conveniently characterize as “overly complex legal language” may be bad writing or may be language that has been interpreted by courts, given specialized meaning, and convey a very specific concept. We use these because they have firmly established meanings and we can rely on the language in contracts, briefs, statutes, rules, whatever, because we know what they mean. Write something different and pray that somebody will agree with your disavowal of established language and conclude that while you said something one way, you meant it another way, and it should be understand the way you chose not to write it, at your client’s peril.
Do you really think your client wants to risk defeat to please your writing sensibilities? Most clients prefer to prevail rather than cater to such idiosyncrasies.
But what about contracts? Isn’t the whole point of writing a contract that the parties be able to read it and know what they’re agreeing to?
There is a minor purpose in the parties knowing what they’re agreeing to, but that’s not the point of written contracts at all. They parties ought to know what they’ve agreed to without a writing or they have no contract. The point of a writing is for a court to know what they’ve agreed to when there is a dispute so that the court can determine who is right and wrong.
Law isn’t for when things are going great, but for when they aren’t.
Thank you for pointing out my typo! I corrected it. Amazing how one can miss that, despite multiple readings. You’ve got one of your own above: “your” instead of “you’re.”
Oh, and my butt feels fine, but thanks for your concern. I do like the phrase, “banal scent.” That’s pure gold.
You’re welcome.
Completely disagree with the notion that the only purpose of legal writing is to communicate an idea as clearly as possible to a judge. Lawyers let the legalese get completely out of control especially in contracts, where a main purpose of legal writing is to communicate to the contracting parties what they are agreeing to, precisely in order to prevent misunderstandings and having to get a judge to adjudicate what they agreed to later on. I think that legal writing should be no more complicated than what’s required to accurately express what the lawyer needs to express. There’s often no way to avoid complicated legal writing in contracts – some things just can’t be expressed simply – but, especially in contract drafting, intellectual laziness by lawyers is rampant. I get the sense that lawyers use some ancient formulations like magic words, without knowing or caring what they mean, just because they’ve acquired some gravitas after 100 years. Actually there’s usually no purpose served by saying “by and between” instead of “between” or “one (1)” instead of “one”.
I think that’s the best explanation of the purpose of a contract I’ve read.
I’m going to steal that.
If your clients don’t know what they are agreeing to until the read it in writing, then you’re doing it wrong.
And as for why anyone would write “one (1),” it’s to avoid the problem of writing “one (7),” or worse that you wrote “one” but meant “one hundred.” Oops. Better to get it right and leave no doubt than save three keystrokes.
As for “by and between,” it means that the parties who are signatory to the contract (the “by” part) are also performing the contract (the “between” part). Say you agreed to pay for a horse for your daughter to use on her farm, making you the signatory and her the performer, to whom the warranty of horsey fertility were some day due. There’s a reason for everything, even if you don’t know what it is yet. So if you left it out because you didn’t know, and the shit hit the fan later, you would look kinda foolish for having “outsmarted” the legalese and screwed your client.
And never underestimate the benefit of 100 years of gravitas. It’s saved many people from misery. Misery is not as much fun as some people think.
A basic rule of life is just because you don’t know the reason doesn’t mean there isn’t one.
But for that, we would just shake hands.
At this point, I’m convinced the problem is that, when we teach learning comprehension, we don’t also teach that writing does not have to be comprehensible to everyone. (As if we need more stuff to teach in schools, but this seems important.) The point of legal writing, as Scott says, is precision, not mass appeal (or even mass comprehensibility.) Maybe we need to be explaining much earlier that people are not going to understand *everything* that is written, and that this is by necessity. Lawyers and legislators should avoid unnecessarily florid legalese, but laypeople should understand that florid legalese is sometimes necessary. Ergo, said masses should undertake self-education to achieve understanding of the distinctions in required verbiage discussed herein, and said masses should cease and desist from their bellyaching; or, in the alternative, societal resources should be committed towards educating the aforementioned complainants’ dependents in the interest of preventing future bellyaching.
What is this word, “bellyaching”?
(a) As used herein, “bellyaching” refers to the practice of complaining “in a whining manner,” American Heritage Dictionary (2009), cited by http://www.thefreedictionary.com/bellyaching.
(b) “Whining,” as used in subparagraph (a) herein, shall refer to complaints or protests made “in a childish fashion.” Id., cited by http://www.thefreedictionary.com/whining.
(c) “Childish,” as used in subparagraph (b) herein, shall refer to conduct ordinarily and reasonably expected of individuals who are least least ten (10) years of age younger than the age of majority established in Title II of the Texas Family Code.
(d) The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Nice to see my “no links in comments” policy didn’t slow you down any.
Apologies.
Screw apologies. Send a pie.
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That was supposed to look like pie. Lousy variable-width font.
As if it was gonna be that easy. Bwahahahaha.