Legal writing gets a lot of press these days. Bryan Garner interviews SCOTUS justices and adds to his impressive assortment of legal writing guides. Lawyer Matthew Butterick writes an incredible book on, of all things, typography, showing us what those non-lawyers who publish for a living already know—font, spacing, alignment all add to—or detract—from the reading process. But, “legal literati” aside, lawyers as a whole still don’t get it.
Many of us write as if our reader—most often a judge or law clerk—owes us his undivided attention. We don’t polish our sentences. We bury important points in big blocks of text. We habitually write empty, ritualistic phrases like “Comes now, so and so,” archaic words like “hereinafter” and “heretofore,” silly intensifiers like “clearly,” and generally unnecessary ones like “said,” e.g., “the said agreement,” that do little more than annoy the reader. (They certainly do not convey anything meaningful.) Instead of building paragraphs around compelling topic sentences and developing our clients’ stories, we just write until we’ve said what we want to say, and then we file the brief or motion. Big mistake.
Butterick calls this mindless writing presumptuous. We presume that readers will struggle through the difficult-to-grasp prose, overlook the confusing run-on sentences, and seize upon our primary argument, but “readers are not doing you a personal favor. Reading your writing is not their hobby. It’s their job. And their job involves paying attention to lots of other writing.” And it is actually worse than Butterwick supposes because the reader’s attention is not fixed exclusively on other legal writings, briefs, and pleadings; as Texas lawyer Kendall Gray explains in a great series of posts available here, here, and here, the Internet at large stalks the reader’s attention like a hungry river crocodile. Consider how many times during a given research or writing project you “take a break” to check your email, espn.com, or the like. Judges and law clerks want to know the score of the Braves game as much as you do, and they act on those impulses just like you do. Of course, we can’t stop them from laying your brief down to check the score, but we can certainly avoid giving them a good reason to set your brief aside by making it easy-to-read and easy-to-understand.
Delivering a product that meets that criteria is difficult, though. Most of us aren’t wired to write effective, easily read and understood prose. Judge Frank Easterbrook, one of the best writers on the bench, says that short, simple prose is best, but we subconsciously fight short and simple with the same dogged determination that we litigate. Sorry for the tough love … but get over it. To be effective, you have to write short and simple prose. I’ve yet to meet anyone who genuinely believes that a key ingredient of advocacy involves unnecessarily stretching a linear 5-page argument into a circuitous 15-page one.
To learn to write well, Judge Easterbrook says, we must read a lot. (And he doesn’t mean, “read a lot of orders and briefs”; as he has said, “Lawyers tend to be wretched writers, which is odd given that the written word is their stock in trade. Perhaps the problem comes from reading principally the work of other lawyers.”) Heeding Judge Easterbrook’s advice, I recently read Stephen King’s memoir and writing guide, “On Writing.” A legal writer, a lawyer, can learn a lot from King, and I will provide some specifics in future posts.
Dustin Marlowe
