Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Plain English Subcommittee of the
Publications and Website Advisory Committee. We seek 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.
selection of the starting words should always make the audience want
to hear more.1
Start in the very first sentence with the problem in this case. Put
it right up front .... Don’t bury it under a lot of verbiage and
drafting court papers, litigators routinely waste their openers by repeating,
more or less verbatim, the very words of the title, which often consists
of four or more lines of verbosity. This peculiar habit has led Kevin
McDonald, a Washington, D.C. lawyer, to coin the phrase ‘‘hence the title’’—the
remark that a judge might make after slogging through an opening like
this one, in a paper filed by a hypothetical company named Belcom:
PLAINTIFF BELCOM COMPUTER COMPANY, INC.’S OPPOSITION TO DEFENDANT
WORLDWIDE TELCO, INC.’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
STRIKE PLEADINGS BASED ON PLAINTIFF’S VIOLATION OF THIS COURT’S JUNE
13, 1996 ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES PLAINTIFF BELCOM COMPUTER COMPANY, INC. (‘‘Belcom’’), and files
this its Opposition to Defendant Worldwide Telco, Inc.’s (‘‘Worldwide’s’’)
Motion to Dismiss or, in the Alternative, to Strike Pleadings Based
on Plaintiff’s Violation of This Court’s June 13, 1996 Order (‘‘Worldwide’s
Motion to Dismiss’’), and for its Opposition, Belcom would respectfully
show unto this Honorable Court as follows:
opening plainly does not make the judge want to hear more. Even worse,
Belcom’s lawyers have now reminded the judge—twice—that Belcom is accused
of violating a court order. And they’ve done nothing to dispel that
notion. What’s more, the judge knows nothing at all about Belcom’s position.
judges probably skim over such inane chunks of introductory text. But
if a judge paused to consider such an opener, the only conceivable response
might be: ‘‘Oh, I get it. That’s why you used that title up above! Thank
you for telling me that this isn’t a falsely labeled court paper!’’3
devoting the entire opening paragraph to restating the needlessly long
title, lawyers waste judges’ time and sacrifice a valuable chance for
that opening to this alternative one:
Opposition to Worldwide’s Motion to Dismiss or Strike
has fully complied with this Court’s June 13, 1997 order to amend
its complaint. As the order requires, Belcom’s amended complaint states
specific facts supporting its contention that Worldwide deceived the
patent office in applying for the patent at issue, thus rendering
the patent invalid. Instead of disputing those facts, Worldwide now
seeks drastic relief—asking this Court to dismiss or strike Belcom’s
invalidity claim. Worldwide’s motion should be denied.
beginning is better, both in substance and in style, because it:
Doesn’t repeat Worldwide’s contention that Belcom has violated a court
Notes the limited scope of the order and argues that Belcom has complied
States Belcom’s contention that Worldwide deceived the patent office
(suggesting that Worldwide has a strong incentive to get this claim
Explains why Belcom opposes the motion.
Points out the drastic nature of the relief sought.
Is shorter and easier to read.
Doesn’t merely parrot the title.
Eliminates legalese—including ‘‘Now Comes’’ and ‘‘Said Court.’’
Abandons the formulaic practice of defining short forms for papers and
names. (In a response to a single motion in a two-party case, no one
will be confused by references to ‘‘this motion,’’ ‘‘Belcom,’’ and ‘‘Worldwide.’’)
Changes all-capital text to small caps (for the title) and ordinary
text (for the rest), thus making the paper more readable.
Gets rid of underlining, which takes up valuable white space and makes
prose ugly and unreadable.
litigators can rattle off a hence-the-title opening for any paper, even
before they have an inkling of their position. That fact alone reveals
that such an opening can’t possibly advance a client’s cause. And common
sense isn’t the only reason to swear off the hence-the-title principle
and other forms of legalese: most judges prefer plain language.4
formulaic openers with forceful arguments, lawyer can capture the judge’s
attention, enhance their credibility, and show from the outset why their
client should win.
Jefferey McQuain, Power Language: Getting The Most Out of Your Words 109
Nathan L. Hecht, Supreme Court of Texas (as quoted in Bryan A. Garner,
Judges on Effective Writing: The Importance of Plain Language,
73 Mich. B.J. 326, 326 (1994)).
Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in
Trial and Appellate Courts 291 (1999).
See Joseph Kimble and Joseph A. Prokop, Jr., Strike Three for Legalese,
69 Mich. B.J. 418 (1990) (reviewing the results of a survey done in three
states); State Bar Committee Attacks Legaldegook, 54 Tex. B.J.
921, 932 (1991) (reviewing the same study in Texas).
from Volume 6 of The Scribes Journal of Legal Writing. If you have published
legal articles and are interested in joining Scribes (The American Society
of Writers on Legal Subjects), contact Prof. Kimble.