Studies Show Judges Hate Legalese; So Do We
It all began with an Eleventh Circuit judge's repeated use of "inter alia." It must've been dropped fifteen times in the first three pages before I gave up, went to another (more interesting) opinion, and blogged on.
Seriously. Why "inter alia" instead of "among other reasons?" Coming from someone who has to read four or five appellate opinions per day for our Circuit Court Blogs, the best and most persuasive arguments are those presented in plain English, with well-organized headings and sections, and presented in as few words as possible.
Obviously, achieving that hat trick is quite difficult. Just ask my editor, who kindly trims my ranting posts. But these qualities are something every lawyer should strive for, and as new attorneys, you are in a position to make best practices career-long habits.
It’s Not Just Us
You’re probably thinking: why would I have a flying [expletive] about what a blogger thinks? Besides, if I use more big legal words, judges will totally buy my BS. Nah, fool. Judges hate your legalese too. You could ask Bryan Garner, who, along with Justice Scalia, seems to be on a lifelong campaign against terrible legal writing. Or could you do what lawyers do, and check the research.
Decades of Empirical Evidence
An awesome Twitter-er responded to my “inter alia” rant with a link to a 1986 study done by Professor Robert W. Benson and Dr. Joan B. Kessler, Esq. The study’s findings are nicely summarized in the final paragraph:
“It appears that lawyers run substantial risks when writing documents in traditional legalese, even when the intended audience for those documents consists entirely of judges and their aides. Lawyers who write in legalese are likely to have their work judged as unpersuasive and substantively weak. Perhaps even more worrisome for these lawyers personally is the finding that their own professional credentials may be judged less credible.”
Okay, but you want numbers. Bare assertions only suffice for your arguments. The Benson-Kessler study has many statistical measures that would make most of us quiver (in a bad way), so here some of the results of another study, this time done in 2010 by practicing attorney Sean Flammer:
Both studies surveyed sitting judges. Both say the same thing: English beats Legalese.
Now, that doesn’t mean legal jargon is completely useless. You can still impress non-lawyers or prospective clients by tossing around a few Latin terms.
“Yeah, you’ve got a bad case of respondeat superior there. Think a defense of laches might apply, as People v. Jameson held, inter alia, that not exercising one’s imminent domain rights leaves you without adverse possession of a tortfeasor.”
See. You know that makes zero sense, both legally and grammatically, but to a butcher, baker, or a candlestick maker? You might just have something.
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