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Is Pleading Style Really a Matter of Taste?

tasting-2The 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.

(Photo by Amanda Tipton / CC BY 4.0)

  1. Laker Airways Ltd. v. Pan Am. World Airways, 103 F.R.D. 42, 49 (D. D.C. 1984).  

  2. 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). 


Keep Your Eye on the Ball! (A Legal-Writing Exercise)

foul-ballsIt’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


Lawyerly Communication Doesn’t Work

confused-mediumI 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


lawbooks-2To 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


You Think the Law Requires Legalese?

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


You Think Anybody Likes Legalese?

Haystack-KimbleI 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


Can Legalese Tank Business Deals?

China-e1372648528187In 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


Plain-English Reform Transcends Ideology

7490361998_366f84defbAt 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


Simple Legal Writing Isn’t Baby-Talk

seminar-photoLast week at Lawyerist I republished my April Minnesota Lawyer column titled Use 5-Cent Words for 10-Dollar Ideas. The column expanded on a previous Lawyerist column I wrote called Simple Legal Writing a Newfangled Idea? Hardly.

Both columns point out that legal writing in plain English isn’t something that Bryan Garner dreamed up in law school and decided to foist on the legal profession. To the contrary, for hundreds of years writers have produced great works by writing simply, plainly, and directly.

Despite its impressive pedigree, however, some critics still charge that plain English is uneducated baby-talk unfit for the practice of law. Plain-language critic Jack Stark, for example, has called plain-English writing “dumb-downed.” Read More


Please join me and Andy Mergendahl on April 12, at 9:00 a.m., at William Mitchell College of Law in St. Paul, Minnesota for Effective Legal Writing — Getting Back to Basics. The CLE will also be streamed online as a webinar.

Andy and I will discuss the basics of brief writing and contract drafting, and we’ll also give tips about how to practice effectively before the Minnesota Court of Appeals and district courts.

Minnesota Legal Services State Support is sponsoring the CLE, and it has applied for 2.0 hours of Minnesota standard CLE credit.

To sign up, please visit this website for more information. We hope that you will join us on April 12.

(photo: http://www.flickr.com/photos/26254305@N08/5853352145/)