Choice Words: Legal writing tips

  • April 23, 2017
  • Andrea Sanche and Daniella Murynka

An Interview with Joseph Kimble, Distinguished Professor Emeritus at Western Michigan University–Cooley Law School and  longtime editor of “Plain Language”.

For nearly 35 years, the Michigan Bar Journal has put out a monthly “Plain Language” legal-writing column—the longest-running legal-writing column ever published. Much has changed since May 1984, when the first column of the series went to print (for context, that column detailed the controversy of standard court forms and recommended that forms go on “floppy disks” to be read by “widely used microcomputer systems”).

But much has, unfortunately, stayed the same. Carelessness, pretension, and habit continue to stall clear legal writing. Just this year, a US court-of-appeals case involving millions of dollars turned on a poorly drafted statute that, arguably, could have been helped by an Oxford comma.

How do we make sure that legal writing is also good writing? JUST. Magazine’s new series—Choice Words—is a start. In this series, legal writers will debate and educate one another about how to write better and why writing better matters. If you care about clarity, stay tuned.   

To kick things off, we reached out to internationally renowned plain-language heavyweight Joseph Kimble, a Distinguished Professor Emeritus at Western Michigan University–Cooley Law School and the longtime editor of the “Plain Language” column that inspired our series. Professor Kimble has written and lectured extensively on legal writing. He is senior editor of The Scribes Journal of Legal Writing, published by Scribes (the American Society of Legal Writers); a past president of Clarity, an international organization promoting plain language in law; and a founding director of the Center for Plain Language, which rewards plain-language communication and shames “complex, confusing or just plain bad writing and the companies that produce them”. Professor Kimble has written two books—Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law—and received many awards for his vision and reform. Suffice it to say, we were delighted that Professor Kimble agreed to speak with us.

What attracted you to the field of legal writing?

I tell that story in Part 1 of my book Writing for Dollars, Writing to Please. In the ’70s, I worked for the Michigan Supreme Court. I was assigned to work on drafting new and amended court rules. I had had no training in legal drafting in law school and, frankly, knew little or nothing about it. So I went to the library and found one of the few books on the subject (at that time), Reed Dickerson’s Fundamentals of Legal Drafting. It included several pages that showed alternatives to inflated, legalistic, archaic words and phrases. The light went on. And the plain-English movement was starting to take off at about that time, so I quickly became a convert. Later, I was lucky enough to be offered a position teaching legal writing at Thomas Cooley Law School (now WMU–Cooley).

Oddly enough, when I was in law school, I never thought twice about the dismal state of most legal writing. I never questioned it, even though I had been an English major in college. Goes to show you how law students just tend to accept, uncritically, the daily diet of bad writing that they’re fed in their courses. Not their legal-writing courses, but legal-writing courses have to compete with all the other counterinfluences in law school and in practice.

 

Why is “plain language” needed in legal writing?

Because lawyers think and write and speak for a living. And good communicators deliver their message as clearly and concisely and accurately as possible. That’s what plain language is all about. By the way, “plain language,” rightly understood, embraces all the techniques for clear communications, dozens of them. They range from principles of design and organization to sentence construction and word choice. We try to keep learning. But we have to overcome a lot of myths about plain language: it’s dull and drab; it’s imprecise (the opposite is true); it’s just about short sentences and simple words; it’s subverted by the need to use terms of art; and so on and so on. I’ve addressed ten of these myths in Writing for Dollars.

 

How do you define “good” legal writing? Does it mean something different in different fields of law, or is there a unifying characteristic?

Writing that is clear, concise, and accurate—the way your readers want it. Readers don’t read legal writing for pleasure, so please don’t think that proponents are advocating “plain” Shakespeare or “plain” Emily Dickinson. (Believe it or not, we hear that accusation from time to time.) Legal readers are impatient to get the goods, and they resent writing that wastes their time. 

We now have a number of studies—they’re summarized in my book—showing that readers of all kinds, including legal readers, strongly prefer plain language, find it easier and faster to understand, and are more likely to read it in the first place. John Roberts, the Chief Justice of the United States Supreme Court, says, “I have yet to put down a brief and say, ‘I wish that had been longer.’” Justice Ruth Bader Ginsburg says that it would be “a very good idea” if lawyers became more dedicated to trying to use plain English. You’ll find those quotations in volume 13 of The Scribes Journal of Legal Writing.

And no, the defining characteristics of good legal writing don’t vary significantly from field to field.

 

One of the goals of Scribes (the American Society of Legal Writers) is to “promote a clear, succinct, and forceful style in legal writing”. Why does Scribes highlight these qualities?

Because a clear, succinct, forceful style works. And because traditional style has been criticized—ridiculed, even—for centuries. It diminishes respect for our profession. Professor John Lindsay said that “law books contain the largest body of poorly written literature ever created by the human race.” It persists for lots of bad reasons (habit, inertia, the endless recycling of old forms, false notions of prestige, indifference), but it need not and should not. As for a “forceful” style, yes, plain writing can be forceful and expressive. We have nothing against a metaphor or a nice turn of phrase. Of course not. Think of Abraham Lincoln and Mark Twain and George Orwell. They were plain stylists. Our kick is against dense, disjointed, tortuous, sprawling, mind-numbing prose. And we have provided countless before-and-after examples. People who doubt the value of plain language should dig into the literature. Even a dip into it should open eyes.  

 

Have the Scribes Journal, “Plain Language” column, Clarity, and similar efforts actually improved legal writing in the US, or internationally?

That’s the million-dollar question. I think the answer is yes, although that’s hard to measure or prove. One way would be to compare today’s judicial opinions with opinions written 50 years ago. On the whole, I think they’re noticeably better. I think the same is true with laws, although they could still be much better. I’m not so sure about transactional documents, like contracts drafted by large firms. Probably not so much. But we have to recognize that gains will be incremental. We’re trying to level—or chip away at—a mountain of legalese.

 

Which legal writing error do you find the most irksome? How about the most common?

Gosh, where to start? I wouldn’t call it an error, but the unnecessary use of parenthetical short forms is pretty irksome. I mean the writer who adopts the bad habit of writing “Chuck Berry (Berry),” as if the reader wouldn’t know who “Berry” is in a later reference. (RIP, Chuck.) And I don’t like creating and using new initialisms and acronyms—ones that the reader won’t already be familiar with. So you write “The Society to Promote the Blues (SPB).” Just say “the Blues Society” the second time. Newfangled acronyms may save space, but they do not speed communication. False economy. Even worse is creating an acronym and never using it a second time. As for pure error, I’d say the worst one is mistaking “its” and “it’s.” I don’t think it’s terribly common, though. I hope not. Here’s a fairly common one: comma splices, joining two independent clauses together with a comma and no coordinating conjunction, as in “I wanted to leave the game early, however, my friends didn’t.”

 

What is the most critical challenge facing good legal writing today?

Two challenges. First, recognizing how important good writing is to your success as a lawyer. Second, recognizing that you might need to improve. Self-awareness. This probably won’t go down well with your readers, but I’ve seen estimates that about half of lawyers are unconsciously incompetent (as it’s been called) as writers. They aren’t good writers but don’t know that. 

 

Describe an occasion where an error of legal writing produced a disastrous result.

Well, there are thousands of reported cases in which unclear drafting has caused trouble. And courts have to resort to shaky canons of construction—the doctrine of the last antecedent, ejusdem generis, surplusage—to resolve the trouble. In one fairly recent U.S. Supreme Court case, the issue was whether any record, document, or tangible object included fish. Who knows, really? The Supreme Court majority concluded that the statute covered only objects that can be used to record or preserve information. But the question should never have arisen. I’ll bet your readers could redraft the language to make the meaning clear one way or the other.

 

Many young lawyers want to improve their writing—but it’s hard to know where to start. What is the best first step to take?

Start reading good books about legal writing. At the same time: become self-critical about your writing; ask for critique from astute readers and editors; take a CLE or two or three; read widely and notice what good writers do (I’ve seen this described as “forensic reading”). Above all, recognize that writing well takes dedication, a lifelong effort—just as any other skill worth having does. 
 

About the authors

Andrea Sanche is a partner at Ricketts Harris LLP. Her practice focuses on investor liability matters, employment law, fraud cases, and complex contractual and commercial disputes of all stripes. Andrea sits on the board of JUST, is the Vice-Chair of the OBA’s Civil Litigation Section, and currently serves as Secretary of the Board of Directors of Planned Parenthood Toronto.

A reformed Winnipegger, Andrea never takes herself too seriously, and is predictably skilled at pushing cars out of ditches, jump-starting car batteries, and identifying the difference between a jambuster and a goldeye.  

 

Daniella Murynka is an associate with Ricketts, Harris LLP. Daniella has published on a variety of legal topics, including statutory interpretation, judicial reasoning, and contract damages. Her articles appear in the Alberta Law Review, University of Toronto Faculty of Law Review, Queen’s Law Journal, and Canadian Bar Review. While at the University of Toronto, she was twice awarded the Patricia Julia Myhal prize for excellence in legal writing.

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