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Legal Writing Handbook

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I. Writing In The Law Office (cont.)

D. How are the Rules Different in the Law Office?

The legal profession lives and dies by the use of words. If you use the wrong word, omit something important, or insert something that doesn't belong there, dire consequences may result, the worst of which is being sued for malpractice by your own client.

The average Joe on the street would probably tell you that lawyers follow these principles on a daily basis:

Principles of Legal Writing

1. Never use one word where ten will do.

2. Never use a small word where a big one will do suffice.

3. Never use a simple statement where it appears that one of substantially greater complexity will achieve comparable goals.

4. Never use English where Latin, mutatis mutandis, will do.

5. Qualify virtually everything.

6. Do not be embarrassed about repeating yourself.

7. Do not be embarrassed about repeating yourself.

8. Worry about the difference between "which" and "that."

9. Never refer to your opponent's "arguments"--he makes only "assertions," and his assertions are always "bald."

10. If a lay person can read a document from beginning to end without falling asleep, it needs work.

-- Daniel R. White, Still the Official Lawyer's Handbook, p. 176.

There are numerous reasons which explain why legal writing is typically so bad.

There is a financial interest in writing impenetrable contracts.
There is a financial interest in keeping laypersons from dabbling in the law. Incomprehensible legalese supports that interest.
The language of the law is the privileged mode of communication among the initiates.
Law students have a few hours of legal writing instruction in which they are taught to write short, comprehensible, jargon-free sentences. They spend countless hours decoding leading case law, the most ponderous, turgid, and verbose abuse that the English language has ever endured. Cases decided by courts as old as the Kings Bench in 1611 tend to be incomprehensible.
The effect of three years dedication to the dissection of bad prose is hard for lawyers to overcome.
This is part of the process of "learning to think like a lawyer."
The law is a set of abstract rules and principles. Writing about abstractions is always more difficult than writing about concrete subjects.

For some people, the distinction between good legal writing and bad legal writing may not exist.

"A term of art" is "a technical word or expression that conveys a fairly well agreed meaning." It saves the many words that would otherwise be necessary to convey the meaning.

When the question is whether to use a term of art instead of a plain English word, consider:

Is there a plain English equivalent? If so, does it have the connotations that the term of art has?
Is ceremonial language required or expected here? If so, use it.
If not, is the term of art sharper than the plain English word?
"Fee simple absolute" is sharper than any standard English term for "complete ownership of an interest in land."
"Writ of certiorari" is sharp. It has a specific meaning.
Is "mens rea" more precise than "guilty mind" in your context?
"Bona fide" is not necessarily sharper than "good faith." When "bona fide" is used in statutes, such as the Uniform Commercial Code, however, it is sharper than "good faith." A "bona fide dispute" under Arkansas Code Annotated § 4-3-311(a)(ii) has a particular legal meaning:
- (a) If a person against whom a claim is asserted proves that:
  - (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim,
  - (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and
  - (iii) the claimant obtained payment of the instrument, the following subsections apply.

If you are referring to a dispute under the above Code provision, you should use the statutory Latin phrase. A "bona fide dispute" is not exactly the same as a "good faith" dispute, but we didn't draft the UCC -- really boring people did.

Many ceremonial phrases are redundant:

Grant, bargain, sell, and convey . . .

This phrase is used often and with abandon, yet it says the same thing four ways. Unfortunately, people (including attorneys, clients and judges) expect these redundant ceremonial phrases. The eye catches them. They have a specialized legal meaning. Phrases such as this should be used in documents that are designed to perform a function ("instruments") but should be avoided, except in quotations, in documents designed to persuade.

While using legal terms of art is an essential part of drafting documents, attorneys are not paid by the word (contrary to what most people believe.) Moreover, overkill may lead to confusion and lessen the impact and application of a document. Finally, the argument that "this is the way we've always drafted this document" is no excuse for poor drafting.

In the following paragraph, I can use only five (5) words to achieve exactly the same legal result:

Know all men by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit, and use whatever in, of, and concerning this chattel, otherwise known as an orange, or citrus-orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice for his own use and behoof, to himself and his heirs in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints, or conditions whatsoever, any and all prior deeds, transfers, or other documents whatsoever, now or anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.

--Martha Faulk & Irving M.Mehler, The Elements of Legal Writing.

The following paragraph is a portion of an actual Order issued by an agency of the Federal Government:

The instant Order, to which this statement is hereby appended, promulgates the subject CB rules, metamorphosed into "plain English" (i.e., visual stimuli more readily perceived and assimilated by median human cognitive faculties and processes). This endeavor has proven to be a salutary and laudatory exercise in efficacious re-regulation designed to bring government in to a more symbiotic and empathetic interrelationship with its mass democratic constituency. In a word, this item marks the ascendancy of semantic simplicity over obfuscatory verbiage inimical to the common weal. I am gratified that this collegial body today gives approbation to the felicitous regulatory enterprise concluded herein.

FCC Commissioner Fogarty, quoted in David Mellinkoff,
Legal Writing: Sense and Nonsense, p. 76.

10-4 Good Buddy!

The goal of legal writing, then, becomes finding that middle ground between common language and the outdated and outlandish stuff in the two examples above. Otherwise, one might suffer the fate of the verbose attorney in the following case:

Mylward v. Weldon

Chancery Court of England

Reg Lib-A 1596, fol.672 (1596)

Reprinted in Monroe's Acta Cancellariae 1545 - 1625, Vol. 1, p. 692

ANONYMOUS, Judge

Forasmuch as it now appeared to this court by a report made by the now Lord Keeper being then Master of the Rolls, upon consideration had of the plaintiff's Replication according to an order of the 7th of May, of Anno 37 Reginae, that the said Replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same Replication, and by whose advise it was done, to the end that the offender might, for example's sake, not only be punished, but also be fined to her Majesty for that offence; and that the defendant might have his charges sustained thereby. (The execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginae, suspended without any express cause, shewed thereof in that order, and was never since called upon until the mater came to be heard on Tuesday last, before the Lord Keeper, at which time some mention was again made of the same Replication);

And for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff's son, that the said Richard himself did both draw, devise, and engross the same Replication, and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated -- proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for the court;

It is therefore ordered, that the warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall on Saturday next, about 10 of the clock in the forenoon, and then and there shall cut a hole in the midst of the same engrossed Replication which is delivered unto him for that purpose, and put the said Richard's head through the same hole, and so let the same Replication hang about his shoulders with the written side outward, and then, the same so hanging, shall lead the said Richard bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the Bar of every of the three Courts within the Hall, and then shall take him back again to the Fleet, and keep him prisoner until he shall have paid £10 to her Majesty for a fine, and 20 nobles to the defendant for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this court for the abuse aforesaid.

For those unfamiliar with the antiquated language employed by Judge Anonymous, the hapless attorney was sanctioned and required to wear his 120-page brief pleading around his neck at the courthouse -- while in session. And you thought Rule 11 imposed tough penalties.

Lawyers and judges can, on occasion, communicate much with few words:

28 Mich.App. 294

Lawrence DENNY, Plaintiff-Appellant,

RADAR INDUSTRIES, INC., Defendant

Appellee.

Docket No. 8422.

Court of Appeals of Michigan,

Div. 2

Dec. 2, 1970

Leave to Appeal Denied March 9, 1971

Released for Publication March 5, 1971

J. H. GILLIS, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn't. We couldn't.

Affirmed. Costs to appellee.

An overlooked area of legal writing deals with "typographical conventions" -- that is, capitalization, the proper use of punctuation (as in a legal citation) and other related matters.

Becoming proficient in both grammar and typographical conventions separates nondescript paralegals (and legal secretaries and assistants) from those that are "worth their weight in gold."

Another point that ought to be made here is that while some legal work can be learned and executed by rote memorization, the bulk of legal work involves a higher level of intellectual involvement. Learning "how" or "why" is just as important as "what" if you endeavor to become more than the type of paralegal that needs to be told what to do for every task, every day.

E. Where do we find the Rules?

The answer to this question has both easy and difficult answers.

The easy part of the answer can be found in the bibliography in this section. Bookstores have no lack of shelf space devoted to grammar. The UALR School of Law has a bookstore that carries Black's Law Dictionary, The Bluebook, A Uniform System of Citation and other useful reference books used in the legal field.

The difficult answer involves learning, and applying, the rules of grammar, and becoming familiar with the ins and outs of the legal profession. There are no shortcuts or easier ways to becoming a competent legal drafter. Both of us not only own, but use and reuse, numerous reference books.

Here are just a few of the many useful books available:

Baker, Thomas E., Rationing Justice on Appeal, West Publishing Co., 1994.
Beard, Henry, Latin for All Occasions, Villard Books, MCMXC.
Block, Gertrude, Effective Legal Writing, Third Ed., Foundation Press, 1986.
Brendel, Leroy A. and Elsie L. Leffingwell, English Usage Drills and Exercises, Second Ed., McGraw-Hill, 1977.
Bryson, Bill, Made in America: An Informal History of the English Language in the United States, William Morrow & Co., 1994.
Bryson, Bill, The Mother Tongue, English and How It Got That Way, William Morrow & Co., 1990.
Burtness, Paul S. and Jack E. Hulbert, Effective English for Colleges, South-Western Publishing Co., 1986.
Curme, George O., English Grammar, Barnes & Noble, 1947. Dernbach, John C. and Richard V. Singleton, II, A Practical Guide to Legal Writing and Legal Method, Rothman & Co., 1981.
DeVries, Mary A., Legal Secretary's Complete Handbook, Fourth Ed., Prentice Hall, 1992.
Dworsky, Alan L., The Little Book on Legal Writing, Rothman & Co., 1992.
Faulk, Martha and Irving M. Mehler, The Elements of Legal Writing, Macmillan Pub. Co., 1994.
Fowler, H. Ramsey, The Little, Brown Handbook, Third Ed., Little, Brown and Company, 1986.
Brand, Norman and John O. White, Legal Writing: The Strategy of Persuasion, 2d Ed., St. Martin's Press, 1988.
Gowers, Sir Ernest, The Complete Plain Words, David R. Godine, 1986.
Hopper, Vincent F., 1001 Pitfalls in English Grammar, Barrons Educational Services, Inc., 1970.
Lutz, William, Doublespeak, Harper & Row, 1989.
Mellinkoff, David, Legal Writing: Sense and Nonsense, West Publishing Co., 1982.
Mellinkoff, David, The Language of the Law, Little, Brown & Co., 1963.
Moskovitz, Myron, Winning on Appeal, The Michie Co. (Revised Ed. 1985).
Pinckert, Robert C., Pinckert's Practical Grammar, Writer's Digest Books, 1986.
Pinker, Steven, The Language Instinct: How the Mind Creates Language, William Morrow & Company, Inc., 1994.
Pyles, Thomas, The Origins and Development of the English Language, Harcourt Brace Jovanovich, 1971 (2d Ed.).
Ricks, Christopher and Leonard Michaels, Eds., The State of the Language, Univ. of California Press, 1990.
Sabin, William A., The Gregg Reference Manual, Seventh Ed., MacMillan/McGraw-Hill, 1993.
Safire, William, Fumble-Rules, Doubleday, 1990.
Shaw, Harry, Dictionary of Problem Words and Expressions, McGraw-Hill Book Co., 1987.
Squires, Lynn B. and Marjorie Dick Rombauer, Legal Writing, West Publishing Co., 1982.
Strunk, William Jr. and E. B. White, The Elements of Style, Third Ed., Macmillan Publishing Co., 1979.
Tarshis, Barry, Grammar For Smart People, Pocket Books, 1992.
Watkins, Dillingham and Martin, Practical English Handbook, Fifth Ed., Houghton Mifflin Company, 1978.
White, Daniel R., Still the Official Lawyer's Handbook, Penguin Books, 1983.
White, Daniel R., Ed., Trials and Tribulations: Appealing Legal Humor, Catbird Press, 1989.
Wydick, Richard C., Plain English For Lawyers, Carolina Academic Press, 1979.

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