Is Your Legal Writing Terrible? 3 Points to Ponder
Recently in The Chronicle of Higher Education, Steven Pinker -- a professor at Harvard and author of several books about psychology and language -- explained why he thinks academics write so terribly. Poor academic writing comes down to a couple things, including: failure to explain, a desire to hedge, and an overuse of idioms.
Which led us to wonder: Just how bad is your legal writing? Here are three points to think about:
1. Unnecessary Words.
Much of Pinker's article focuses on the problem of self-presentation; that is, experts in a field write according to how they want to be perceived. As lawyers, we tend to want to use big words to show how smart we are. This complaint goes back to at least 1946, when George Orwell lamented in "Politics and the English Language" that "modern writing ... consists in gumming together long strips of words which have already been set in order by someone else, and making the results presentable by sheer humbug."
Lawyers use phrases they're used to hearing only because they think they're supposed to. Cease and desist, for example, is redundant because both words mean the same thing. The phrase is an atavism from the Middle Ages in England, when some people spoke English and some people spoke French, so legal phrases incorporated both. In the United States, it should go without saying that we don't do that anymore.
2. Brevity Takes Time.
It's amazing how "filler" words like consequently, heretofore, and therefore can dramatically expand the size of a legal document. Revision is your best friend, but it happens so rarely (unless you're in an appellate practice) because most litigation is driven by short timelines. You just don't have time to revise because this motion is due tomorrow. So your first draft is your final draft. If you can set aside just 30 minutes to put your writing down and come back to it, it will improve, as you'll see unnecessarily complex sentence constructions that you didn't before.
3. The Curse of Knowledge.
It's not just syntax that's a problem in legal writing; it can also be the attempt itself to convey an idea. Good legal writing should take the reader on a little journey through the writer's thought process and not fall victim to what Pinker calls "the Curse of Knowledge," which he defines as "the general inability to set aside something that you know but someone else does not know."
You know what your argument is and where it's going, but the reader doesn't. This is solved by outlining, which, like separating your recyclables and eating your vegetables, is something you know you're supposed to do but probably don't.
Bad legal writing can be cured, but the decision to write better requires conscious thought; after all, you're overriding years of instinct. But a little investment now will make you a better lawyer in the future.
Editor's Note, September 23, 2015: This post was first published in September 2014. It has since been updated.
- Legal Writing Is Not What It Should Be (Southern University Law Review)
- Face It -- Bad Legal Writing Wastes Money (Lawyerist)
- Friday Double Poll: Best and Worst SCOTUS Writers (FindLaw's U.S. Supreme Court Blog)
- Bryan Garner Thinks We All Lawyers Can't Write So Good (FindLaw's Greedy Associates)