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?
Let’s push the rewind button: the law requires a plain, direct writing style for pleadings. Where does personal preference enter this “must” picture?
Do the lawyers who hold fast to their stilted style also make the style choice to omit Rule 8’s mandatory statement of jurisdiction? Is it their style to file the complaint two days after the statute of limitations has expired? Do we lawyers get to pick and choose which laws we follow? Do we get to skip the rules we don’t like?
True, I’m comparing some black-and-white concepts—such as a filing deadline—with the more fluid concept of linguistic plainness. And skeptics may scoff given the admittedly remote prospect of having their overblown pleadings tossed for prose style alone.
Yet the truth is still plain: lawyers who inflate their diction—who consciously refuse to draft pleadings in a plainer style—are doing it wrong. I don’t say so. The law says so. And can any lawyer claim excellence while flouting the law?
Mark Cooney teaches legal writing at Western Michigan University Cooley Law School. His articles have appeared in The Scribes Journal of Legal Writing, Student Lawyer, the Michigan Bar Journal, and Trial magazine. He is the author of Sketches on Legal Style, a collection of short humor pieces and essays on legal writing, many of which originally appeared in the Michigan Bar Journal’s Plain Language column. He is editor in chief of the Scribes Journal and has served as a plain-language consultant on the Michigan Bar’s and Michigan Supreme Court’s committees on standard criminal jury instructions. He has also chaired the Michigan Bar’s Appellate Practice Section. Before teaching, he was a civil litigator for ten years.
See, e.g., Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., ___ F. Supp. 3d ___, 2014 WL 5011047 at *20 (S.D. N.Y. Sept. 29, 2014). ↩