Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Bar Journal Advisory Board’s Plain
English Committee. The assistant editor is George Hathaway. The
committee seeks to improve the clarity of legal writing and the
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article is reprinted, with permission, from the Thomas M. Cooley Law
Review. The article was published without footnotes. –JK]
Thompson Denning—England’s Lord Denning to the legal world—died recently
at the age of 100. Before retiring in 1982, he had served on the bench
for 38 years, the last 20 as Master of ,he Rolls, the head of England’s
Court of Appeal. At a memorial service held in Westminster Abbey, the
Lord Chief Justice of England hailed Denning as ‘‘the best-known and the
best-loved judge in the whole of our history.’’
the Master Storyteller
Denning was most renowned for his clarity of expression. His judicial
opinions (the English call them ‘‘judgments’’) were regarded as models
of lucidity. He wrote in short, crisp sentences intended to make the law
accessible to lay people. A biographer referred to his writing style as
Many law students encounter their first Denning opinion in Contracts in
a case involving Anglia Television’s suit against the American actor Robert
Reed for backing out of an agreement to star in a made-for-television
movie. Lord Denning sets the stage in the opening sentences of his opinion:
Television Ltd. were minded in 1968 to make a film of a play for television
entitled ‘‘The Man in the Wood.’’ It portrayed an American married to
an English woman. The American has an adventure in an English wood.
The film was to last for 90 minutes. Anglia Television made many arrangements
in advance. They arranged for a place where the play was to be filmed.
They employed a director, a designer and a stage manager, and so forth.
Due to Denning’s storytelling style of writing, the reader immediately
understands the setting for the lawsuit. Law students, even in their first
weeks, can see the issue coming: May Reed be held liable for expenses
Anglia incurred before he agreed to be the leading man?
Canadian law professor, Cameron Harvey, read every one of Denning’s opinions
in preparing an article on his distinctive writing style. Here are the
opening lines of some of Professor Harvey’s favorites. See how quickly
one is drawn into the story:
some this may appear to be a small matter, but to Mr. Harry Hook, it
is very important. He is a street trader in the Barnsley market. He
has been trading there for some six years without any complaint being
made against him; but, nevertheless, he has now been banned from trading
in the market for life. All because of a trifling incident.
is one of the most pleasing villages in England. Old Herbert Bundy,
the defendant, was a farmer there. His home was a Yew Tree Farm. It
went back for 300 years. His family had been there for generations.
It was his only asset. But he did a very foolish thing. He mortgaged
it to the bank. Up to the very hilt.
Deeble has a milk round. He sells milk to people at the doors of their
houses. He runs his business from a dairy building where he keeps his
equipment, refrigerator, spare milk bottles, and so forth, and a stable
where he keeps his horse and float. His round is seven streets adjoining
the premises. He does not actually have a shop as ordinarily understood.
His lease of these premises is coming to an end, and he wants to stay
on there. This depends on whether the premises come within the definition
of a shop in the Leasehold Property Act.
his autobiography, Lord Denning described his approach to judgment writing
start my judgment, as it were, with a prologue—as the chorus does in
one of Shakespeare’s plays—to introduce the story....I draw the characters
as they truly are—using their real names....I avoid long sentences like
the plague, because they lead to obscurity. It is no good if the [reader]
cannot follow them....I refer sometimes to previous authorities—I have
to do so—because I know that people are prone not to accept my views
unless they have support in the books. But never at much length. Only
a sentence or two. I avoid all reference to pleadings and orders—They
are mere lawyer’s stuff. They are unintelligible to everyone else. I
finish with a conclusion—an epilogue—again as the chorus does in Shakespeare.
In it I gather the threads together and give the result.
Opinion Style Similar
there American judges with a similar flair for storytelling? Surely one
is Justice Benjamin Cardozo of the New York Court of Appeals (1914–1932)
and United States Supreme Court (1932–1938). It has been said that American
law-school casebooks contain more opinions by Cardozo than by any other
judge. This is not only because they moved the law forward but also because
of Cardozo’s ability to write with clarity and style.
of Cardozo’s most famous opinions are MacPherson v Buick and Wood
v Lady Duff-Gordon. MacPherson is regarded as Cardozo’s most
influential opinion and is the only case reprinted in every American casebook
on Tort law. Wood is one of Cardozo’s best-known Contracts opinions. Here
is the curtain-opener in MacPherson:
defendant is a manufacturer of automobiles. It sold an automobile to
a retail dealer. The retail dealer resold to the plaintiff. When the
plaintiff was in the car it suddenly collapsed. He was thrown out and
injured. One of the wheels was made of defective wood, and its spokes
crumbled into fragments.
this is how Cardozo introduced the defendant in Wood:
defendant styles herself a creator of fashions. Her favor helps a sale.
Manufacturers of dresses, millinery, and like articles are glad to pay
for a certificate of her approval. The things which she designs, fabrics,
parasols, and what not, have a new value in the public mind when issued
in her name. She employed the plaintiff to help her to turn this vogue
admirers have lauded Cardozo’s opinion style as ‘‘poetic’’ prose; the
opening sentences in Wood have the cadence and quality of blank
verse. Chief Judge Richard Posner, in his book Cardozo, A Study in Reputation,
praises Cardozo’s opinions for the drama and clarity of their statements
of fact. They have, he writes, a charm that is ‘‘at times theatrical and
even musical.’’ (However, a cynic has postulated that Cardozo’s opinions
are easier to set to music than practice law by. Torts students who struggle
with Cardozo’s well-known opinion in Palsgraf v Long Island Railroad
will probably agree.)
The ability to write in a clear, direct, storytelling style helps explain
why, like Lord Denning in his country, Cardozo has been called ‘‘America’s
Appeal of Storytelling
M. Williams is a professor of English at the University of Chicago and
author of Style: Toward Clarity and Grace. In it he explains the
appeal and effectiveness of telling stories as a form of communication:
are among the first kinds of continuous discourse we learn. From the
time we are children, we all tell stories to achieve a multitude of
ends—to amuse, to warn, to excite, to inform, to explain, to persuade.
Storytelling is fundamental to human behavior. No other form of prose
can communicate large amounts of information so quickly and persuasively.
many judicial opinions begin in a way that seems deliberately designed
to obfuscate. Take the opening paragraph of an opinion many law students
encounter in their first week, Hawkins v McGee (the ‘‘Hairy Hand’’
case made famous by The Paper Chase):
against a surgeon for breach of an alleged warranty of the success of
an operation. Trial by jury. Verdict for the plaintiff. The writ also
contained a count in negligence upon which a nonsuit was ordered, without
is THAT all about?
take the opening sentence of another Contracts case most law students
encounter in their first weeks, Morrison v Thoelke:
defendants and counter-plaintiffs in the lower court, appeal a summary
final decree for appellees, plaintiffs and counter- defendants below.
Moral of the Story
it any wonder that beginning law students come to class anxious and confused?
The case method of instruction requires them to prepare for class by reading—unaided
except for an ever-present law dictionary—judicial opinions selected from
what has been called ‘‘the largest body of poorly written literature ever
created by the human race’’ (John Lindsey, writing in the New York
succeed, law students must understand, and then be able to recall, the
cases that they are assigned. Writing in the newsletter Perspectives,
Professor Williams explains that the storytelling form of expression is
an aid to both understanding and recall:
clearer any story seems to any reader, the more easily that reader will
understand it. The more easily that reader understands your story, the
longer and more clearly he or she will remember it.
Professors Deborah Schwedemann and Christina Kunz at the William Mitchell
College of Law, in their book Synthesis: Legal Reading, Reasoning,
and Writing, encourage law students to approach cases as if they were
fables. ‘‘Fables consist of two components: the story and its moral, which
suggests an outcome for similar stories occurring in the future,’’ they
write. ‘‘Cases, too, contain a story and a moral....’’ That’s a good strategy
not only for novice law students, but for the drafters of opinions as
case method has been firmly entrenched in American law schools for over
100 years. Despite perennial student complaints, it will continue to be
a mainstay of the first-year curriculum for generations to come. If more
appellate judges would adopt the Denning/Cardozo style of telling memorable
stories, perhaps law students would actually enjoy doing their homework.
I hope so.