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Generally, you should focus your research on four types of cases, and you should cite unpublished opinions only when published decisions don’t exist for the issue.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
I was an early convert to plain language — or plain English as it was called then — when it began to make headway in the 1970s. From the start, I was convinced that plain language is a just cause: right in its strong criticisms of traditional legal style, right in its call for reform, and right in its general prescriptions. Of course, my understanding of it has evolved and broadened over the years, but it remains for me a passion — a life’s work. And the work will need to go on long after I’ve gone on. A reformer, someone once told me, needs a geologist’s sense of time. Read More
In response to my May 1, 2013 column Simple Legal Writing Isn’t Baby-Talk, I received a comment on LinkedIn from Lyn Boxall, a management consultant who works in Singapore. Before doing consulting work, she was an in-house lawyer for Visa International and GE Capital Australia.
Ms. Boxall recounts her experience with the plain-language movement in Asia and Australia. She points out that, compared to some other countries, the plain-language movement in the United States is fairly new. She also has lessons for those people who still believe that plain language is a strictly academic pursuit. In her experience,
- Plain-language consumer agreements can result in fewer consumer disputes.
- In Asia, if a party drafts a contract containing dense legalese, the other party will consider it a sign of distrust.
With her permission, I’ve reproduced her comment below (with minor editing and formatting to conform it to house style). If you do business in the Asia Pacific region, or are asked by a client to negotiate and draft contracts with another party located there, it would behoove you to read her entire comment: Read More
At the end of his career, Thomas Jefferson reflected on the style of early American statutes:
[I]t would be useful . . . to reform the style of [statutes] which, from their verbosity, their endless tautologies, . . . and their multiplied efforts at certainty, by saids and aforesaids, by ors and by ands, to make them more plain, do really render them more perplexed and incomprehensible, not only to common readers, but to the lawyers themselves.
We might excuse the early American drafters’ poor legal writing; after all, they’d inherited a legal language that was hardly a model of clarity. But what excuse remains for the modern defenders of the traditional style of legal writing? Despite decades of studies showing otherwise, the old guard still claims that it’s not possible to make legal writing comprehensible to ordinary people without sacrificing precision.
The traditional style of legal writing is an accident of history, which the legal profession has perpetuated through inertia and self-interest for one-thousand years. If the bar is serious about empowering citizens by making the law more accessible, it must demand without exception plain English as its legal language. Our time, perhaps more than any other, demands it. Read More