The Lawyer's Guide to Writing Well. Tom Goldstein

The Lawyer's Guide to Writing Well

judicial opinions, law review articles are seldom criticized for their density and opaqueness. As law reviews proliferate—more than 650 are now published—the law review style spreads. Journal editors move on to clerkships, and in those jobs they re-create what they have learned: unending essays, numerous footnotes, suffocating prose—all taught by people who are themselves far from being students of good writing. Many lawyers say they learned how to write and edit on a law review. But the question is what they learned. If you are taught by people who prefer long-windedness, you will likely adopt that long-windedness. In criticizing law review writing, we do not mean to be anti-intellectual, but we do mean to observe that good writing is rarely taught, bad writing usually absorbed. Although many lawyers deplore the style of law reviews, few suggest how to improve the style, and few pledge to refrain from writing for the reviews.

Cultural

Two centuries ago, the tiny social elite that could write also tended to read. The intellectuals of the day, including the learned professionals—lawyers, clergy, and doctors—read the classics and the leading contemporary works. By the mid—twentieth century, that common culture had vanished. In 1950 Arthur Vanderbilt lamented that “no instructor in any class in any law school can make a reference to Plato or Aristotle, to the Bible or Shakespeare, to the Federalist or even the Constitution itself with any real assurance that he will be understood.”³² Today, most learned professionals are drowning in technical literature and have little time for reading outside their field.

Lawyers who do not read broadly fail to develop the nimbleness of mind that distinguishes good from bad writers. Carl McGowan recalled the comments of a Supreme Court justice who complained that the quality of briefs and oral arguments before his court was “distressingly low.” The justice, whom McGowan did not name, lamented “the narrowing cultural range of the profession,” which he attributed to “the restricted reading habits of lawyers, both in terms of the small amount of time devoted to general reading and the ephemeral character of what is read.”³³

They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters.

THOMAS MORE, Utopia

What lawyers do encounter in their narrow reading is bureaucratic double-talk (among McGowan's examples: the Pentagon's description of appropriations not already spent as “unprogrammed in no-year accounts”). As George Orwell pointed out in “Politics and the English Language” (1946): “[Our language] becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.”³⁴ Beset by euphemisms (“terminations with extreme prejudice” for “kill”), obfuscations (“inoperative statements” for “lies,” and “revenue enhancements” for “tax increases”), and other forms of Newspeak (presidential quibbles about “what the meaning of is is”), lawyers find it difficult to think or write clearly.

Psychological

As representatives, lawyers hesitate to intrude their personalities into the affairs of their clients. Trained to identify more with process than value or outcome, exhorted to refrain from vouching personally for their clients' bona fides,³⁵ lawyers are distanced from the merits of their causes. But writing is a personal act, which reveals the writer in the act of writing. To avoid or minimize the revelation, lawyers transfer the masks that they wear in public to the prose that they put on the page.³⁶ The passive voice, the fuzzy phrases, and the circumlocutions that permit the lawyer to sidestep the simple “I” may all be understood as lawyers' attempts to keep themselves from being on display.

Intellectual

The final explanation is the most devastating: Lawyers lack the aptitude, or at least the training in logic, to think clearly, and their muddy writing reflects their muddled thinking. Hyland, for example, concluded that many lawyers suffer from a disorder far more serious than lax style: they succumb to “the irrelevancies that reveal the absence of disciplined thought.”³⁷ Unable to assess the validity of an argument, they toss in every point they can think of, hoping one will capture the justices' fancy.

I know you Lawyers can, with Ease, Twist Words and Meanings as you please; That Language, by your Skill made pliant, Will bend to favour ev'ry Client;

BENJAMIN FRANKLIN

True, the more complicated a legal problem, the more likely a lawyer will flounder, but Hyland's diagnosis is flawed (as is his bizarre notion that most lawyers are incapable of thinking clearly because they have not been trained in Latin, Greek, or comparative law). Many legal problems are simple enough for any practicing lawyer to grasp. Failure to organize a document logically cannot be attributed solely to an empty head. Poorly organized thought and cloudy concepts are also products of laziness and inadequate grounding in what constitutes clear expression.

Poor writing is often just that. Lawrence Friedman, after discussing the purposes that legal language rightly fulfills, notes that “law books are full of incredible quantities of plain bad style—clumsy, pompous legalese and tedious, obscure prose—which is neither good law, good magic, nor good history.”³⁸

That it is imperative for lawyers to learn how to express themselves more clearly—against all the social and personal forces we have just explored—is, we think, almost a tautology. Some have doubted it, however. In 1986 Richard Hyland asserted that good writing makes little difference because “prose itself seems to be losing its hold as the prime medium for the communication of thought”; in 2000 Professor Richard K. Sherwin concluded that “print-based culture” has been replaced by an “image-saturated culture,” in which people look “at the signs and symbols that flow by, rather than through printed words for whatever meanings they may offer.”³⁹ We reject the implications of this “McLuhanacy.”⁴⁰ Despite all the new technology, with its powerful capacity to organize and display graphic enhancements on the page, despite torrential story-telling told in television and movies, language still matters. If a picture is worth a thousand words, a few words can summarize, organize, and explain a thousand pictures. The lawyer's job is, as it always has been, to communicate legal thought in understandable prose.

PART II THE PROCESS OF WRITING

3 TEN STEPS TO WRITING

“What is writing for?” we ask a roomful of lawyers.

“Communication,” someone pipes up.

“Anything else?” we continue.

Blank stares. Determined to get an answer, we change our question.

“Quick now, how much is two plus two?”

Singled out by name, the lawyer hesitates, weighing the simplicity of the question against the odious possibility of a complex trick. Finally, the answer: “Four.”

“Good.”

Singling out another lawyer, we ask: “How much is ten times five?” “Fifty,” hurled back in the next breath.

“Very well, then,” pointing this time to a lawyer who has sat silent all afternoon, “how much is 1,324 times 967?”

The wiseguy, overcome with his brilliance, announces that the product is 57,246,589. Polite laughter, from us too.

We point again to the perplexed lawyer, who stares ahead gloomily, not understanding what has turned a writing tutorial at a law firm into a mathematics exercise from which he had fled years before.

“I cannot do that math in my head,” the wriggling lawyer grunts. “I'm no idiot savant.”