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‘‘Plain
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
public opinion of lawyers by eliminating legalese. Want to contribute
a plain English article? Contact Prof. Kimble at Thomas Cooley Law
School, P.O. Box 13038, Lansing, MI 48901. For information about
the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
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So
prevalent is bad legal writing that we get used to it, shrugging it off
as a kind of unavoidable occupational disability, like a cowboy’s bowlegs.
This is an unfortunate state of affairs. Bad writing goes with bad thinking,
and since bad thinking is the source of many of the ills that beset us,
lawyers should acknowledge a professional obligation to wage war against
bad writing. If the author who produced it is you, correct it. If another,
condemn it.
But
who can correct or condemn without first recognizing? It’s not hard. The
disease of bad writing has many symptoms, five of which a child could
spot. The first shows up chiefly in statutes; the second in contracts
and similar documents; the third, fourth, and fifth in briefs and judicial
opinions.
First,
the dread provided that. Use a proviso and you show that you hadn’t
thought through what you wanted to say before starting to write. You came
to the end with matter left unexpressed. Rather than begin again and weave
the unexpressed matter into your text where it belongs, you tack a provided
that into your last sentence, vexing the reader and convicting yourself
of slovenly intellectual habits. For example:
No
person who has not attained the age of twelve years shall be competent
to testify, provided that, if the court finds that any such person understands
the nature and obligation of the oath, such person shall be competent
to testify.
This
statute should have been rewritten as follows:
Every
person above the age of twelve years is competent to testify, but a
person beneath that age is also competent if the court finds that the
person understands the nature and obligation of an oath.
Second,
the unnecessary herein, hereinabove, and hereinafter. These
are show-off words. Anyone who uses them wants the world to see that it’s
a lawyer talking, for only lawyers use such words. There’s no need to
remind the world that you’re a lawyer, and there’s no need for herein.
When asked where’s the library, you don’t reply, ‘‘Two streets down
in this city.’’ ‘‘Two streets down’’ suffices, because no one will mistake
your meaning. So strike the hereinabove from as defined in paragraph
2 hereinabove. ‘‘Paragraph 2’’ can’t refer to some other document
unless you say that it does, in which case you’ll write, for example,
‘‘as defined in paragraph 2 of the master lease of December 20, 1985.’’
Third,
the screaming adverb or adjective. Here, you wish to convey to the court
the intensity of your feelings. You do so by adverbs and adjectives that
neither communicate nor convince. They merely register your dudgeon, which
an experienced advocate knows serves only to mark the offending brief
as beginner’s work. For example, in ‘‘This ruling was outrageously unfair
and is a blatant violation of due process,’’ the adverb outrageously
and the adjective blatant are screamers. Delete them.
Fourth,
humorless exaggeration. When Mark Twain says of Huckleberry Finn
that ‘‘persons attempting to find a plot in [this narrative] will be shot,’’
we laugh. No judge so much as smiles at the solemn overstatement that
many lawyers seem to think is the way to argue a case. It isn’t. Humorless
exaggeration merely leaves the judge suspicious of the trustworthiness
of a brief replete with the likes of this:
The
evidence demonstrates that [the university] has consistently appointed
to tenured professorships so few [members of an identifiable group]
as to constitute only about half of their representation in the population
at large. This is naked racism, amounting to genocide.
Naked is a screamer, and in the circumstances, it’s absurd for counsel
to be speaking of ‘‘racism’’ and ‘‘genocide.’’ Avoid humorless exaggeration.
Fifth,
egregious legalisms. Legalisms, the jargon of the law, have a limited
utility. Employ them within those limits. Beyond those limits, use plain
English. This memorandum by an appellate court is an example of how not
to do it:
The
order of the trial court denying appellant-appellant-respondent’s motion
for summary judgment and granting respondent-respondent-respondent’s
cross motion for, inter alia, leave to amend the complaint and
for leave to serve a late notice of claim, nunc pro tunc, against
respondent-respondent-appellant is reversed, respondent-respondent-respondent’s
motion denied, and appellant-appellant-respondent’s motion for summary
judgment granted.
Substitute
plaintiff or defendant, Jones or Smith, for those
whirling appellants and respondents, and you’ve mitigated
the memorandum’s opacity.
This
article originally appeared in the May 1986 issue of the ABA Journal
and is now included in a collection called Persuasive Writing,
published by The Professional Education Group, Inc. It is reprinted with
permission from the ABA Journal and from The Professional Education
Group, Inc. (800-229-CLE1).
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