The Federal Rules of Civil Procedure are “part of the supreme law of the land.”1 Thus, federal law—not plain-language advocates or well-meaning academics or a faction of forward-thinking lawyers, but federal law—dictates that a complaint “must” contain a “short and plain statement of the claim.” Rule 8’s mandatory must is conspicuously not a discretionary may. No wonder federal courts hang the “requirement” tag on Rule 8’s call for plain language.2
Every state court rule I’ve checked sings the same tune. Alabama, for instance, mandates that pleadings “shall” be “plain.” New Jersey requires “simple, concise and direct” allegations. Michigan says that allegations “must be clear, concise, and direct.” And the beat goes on . . .
So I’m always perplexed when I hear a lawyer announce, “I prefer the traditional style for my pleadings.” Of course, “traditional” style is the common euphemism for turgid and painfully unplain lawyerspeak.
A choice? A matter of personal taste? Read More
It’s been a long, cold winter here in Minnesota. But signs of spring are everywhere. One of my favorites is baseball’s return. This got me thinking about some rather awful legal writing I came across last summer while taking in a Twins game. It occurred to me that I might use it as a real-life example of how to fix bad writing, instead of just ranting about bad writing. Please comment below on whether (and why) I struck out, or at least put the ball in play. (I don’t hit too many home runs.)
If you look at the back of a ticket to a baseball game, you’ll usually find a waiver. It purports to advise you that by deciding to come to the game, you agree to waive your right to sue the league, team, or league employees if you get hurt at the game from a typical baseball event—e.g., a foul ball or a bat flying from a batter’s hands.
But here’s the problem: case law involving waivers tells us that it’s important that a waiver be clear in describing just what rights a person is giving up—one must make an informed choice to waive one’s rights. If the waiver isn’t understandable to a layperson, some courts have held that the rights are not in fact waived. Unlike a lot of legalese, this stuff matters. Read More
I recently agreed to speak to a local MeetUp group on the topic “Plain Language is a right.” MeetUp is an online organizer of local meetings for people with similar interests.
I’ve been promoting plain language and the rights of readers for almost 25 years—beginning with a stint in continuing legal education where I designed a plain-language course for lawyers. In preparing for the talk, though, I caught myself reverting to the lawyer-like mode of presentation that I had learned long ago to reject. I thought, what am I doing?
Here’s a little history and an explanation. Read More
To persuade judges, each legal rule in your motions and briefs must be supported with the best authority. Without citations, judges might think that the stated rules and arguments are merely your opinions—which are irrelevant. (It was a hard lesson for me to learn.)
As a new lawyer, your primary job is to find the legal authority that best supports your case. Partners rarely have time to redo your research. You don’t just find the best cases on the first page of your search results on LexisNexis or Westlaw. You want judges to know—or at least believe—that you have thoughtfully chosen the cases that support your case.
Generally, you should focus your research on four types of cases, and you should cite unpublished opinions only when published decisions don’t exist for the issue. Read More
There’s a sign that, in some configuration, appears on every gas pump in Michigan, although most drivers probably don’t even notice it anymore. You can see one in the photo to the right.
Let’s put aside the all-capitals, which are notoriously hard to read. And never mind that the first and second items aren’t exactly parallel. (“Stop engine. Don’t smoke.”) The trouble — linguistically, stylistically, semantically — shows up in the third item.
Look at that little sentence. We get an explicit subject, A person, which really throws off the parallelism. The lawyer’s shall — now corrupted and ambiguous from misuse — does not belong even in statutes or regulations, let alone on a gas pump. Remain in attendance? Oh, please. The first of is unnecessary. And for the big comedic finish, we’re seemingly told that the nozzle must be able to see the person.
The fix isn’t hard: “You must stay outside your vehicle and be able to see the nozzle.” Or for parallelism with the first two items: “Stay outside your vehicle, and make sure you can see the nozzle.”
Now, are people likely to misunderstand the pump version? No. Is this the worst public writing on the planet? Obviously not. But by tracing this mundane example to its source, anyone who cares about clarity in legal and official documents can learn a set of critical lessons. Read More