Legal Writing Tip: Losing the Legalese, Continued

Savannah Blackwell, BASF Bulletin Contributor

legal-writing-JANAs we discussed in last month’s column, good legal writing does not sound like it has been written by a lawyer, or worse, a committee of lawyers.

That is the basic premise of the movement toward use of plain language in legal writing. The Plain English style is the one most frequently taught in law schools these days, and it has become the favored approach. In recent years, jury instructions and court rules have been rewritten to make them more intelligible, as have government forms and contracts.
But the battle to reduce the mumbo jumbo is ongoing.

This month we offer an example of belabored, lawyer-ish text from Bryan Garner’s The Winning Brief to compare with a plain language version accomplishing the same purpose, but with greater clarity and efficiency.

“TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW [Mr. X], Plaintiff in the above styled and numbered cause, and files this his response to Defendant’s Motion for Summary Judgment and would respectfully show unto the court as follows:”

That, Garner says, is how a “generic lawyer—a formbook copyist” would start a brief.

As opposed to:

“In response to [Company Y’s] summary-judgment motion, [Mr. X] will show there remain no fewer than seven genuine issues of material fact in this case. One of the principal factual issues is ….”

(In Garner’s version, a superfluous “that” appears in front of the word, “there.”)

An old-fashioned, formal address like “to the judge” or “to the court” is unnecessary in a written motion. The filing of the brief makes it obvious the presiding judge is the intended reader, as that is the only person with the power to grant or deny the party’s request.

The legalese, “the above styled and numbered cause,” is unnecessary as well, since the case number is featured prominently on the first page.

And language like “this his response” and “respectfully show unto the court as follows” is overly formal and bogs the writing down.

In contrast, the second version gets right to the point. It does so by shedding the unnecessary throat-clearing, and instead, immediately signals the reader what to expect ahead—seven reason why the opposing party’s motion should be denied—and acts to organize the upcoming material.

On a final note, here’s another lawyerism to banish from legal writing: provided that.

This phrase is often ambiguous (Does it mean if, except or also?), often unclear (Which preceding words is it modifying?), and tends to cause sentence sprawl. If you spot it, cross it out, insert a period, and start a new sentence with But. That’s perfectly acceptable and far preferable.

About the author:

Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She became a licensed California attorney in 2010 and specializes in legal research and writing. She can be reached at savannah.blackwell@gmail.com. Follow her on Twitter at @SavannahBinSF.