| Disclaimer: The law and legal
rules are subject to continual revision and
change. This article is dated September, 2002.
No attempt has been made to update this article
to reflect pertinent changes or developments
in the law, if any, since that date.
Through years of debate
over tax policy and through numerous revisions
of the Internal
Revenue Code, Congress has left 26 U.S.C. § 341(e)(1)
largely intact. Students of legal writing
should be glad. Section 341(e)(1) is an extraordinary
specimen. It harbors an opening sentence
that, while shortened somewhat by recent
amendment, still runs 446 words from beginning
to end.
Although a behemoth like this may be
rare outside the protective environs
of the tax code, it is not difficult
to find other examples of legal
writing – statutes, regulations, pleadings, contracts, memoranda,
briefs – that present substantial challenges to the reader. Verbose,
convoluted, murky, and graceless, legal writing is too often a dismal
chore to decipher.
It does not have to be this way. Good legal writing can convey legal
rules, legal concepts, and legal arguments in a simple, clear, and comprehensible
manner. Here are some traits that mark good legal writing.
Good legal writing is good legal
reading. Writing is an act of communication.
It exists to be read and to communicate
its message to the reader. Good writers
keep their readers in mind. Good legal
writers do the same.
A writing should be appropriate to its
audience and purpose. It may be directed
at the public generally, at a specialized
group, or at a client,
colleague, or court. It may seek to define norms of conduct, as in a
regulation or a contract; to inform, as in a letter or research memo;
or to engage and persuade the reader, as in a brief. When a writing erects
barriers to comprehension through its vocabulary or expression, or when
it becomes more about its own style or the writer’s wit and erudition
than about its subject matter, it strays from its central communicative
purpose. It is no longer good writing.
Good legal writing follows the rules. Good legal writing follows
the rules of grammar and syntax. It speaks in complete sentences, with
subjects and predicates that agree and modifiers that are properly placed.
Technically correct writing is easier to understand. It does not invite
the reader to focus on its formal flaws rather than its message or to
discount its content because the writer appears lazy or careless.
Good legal writing also follows any rules
of form that apply. For instance, many
courts prescribe by rule the order of
parts and required contents
of briefs. A law firm may have a preferred form for research memoranda.
A reader will approach the writing expecting to assimilate information
presented in a particular way. Departing from the expected form frustrates
the reader’s expectations. That is always counterproductive.
Good legal writing is precise. Precision
in legal writing is vital. The English
language has a tremendous capacity for
ambiguity. The law does not tolerate
ambiguity.
Legal writing that is prescriptive or directive, such as a statute or
contract, should leave no room for doubt about how it applies in varying
circumstances. Legal arguments also should express with exactness the
substance and limits of the rule of law that is being advocated.
Precision in legal writing requires thoughtful
consideration of just what one intends
to say. It also requires care in expression.
Using precisely
the right word means being aware of the differences between similar-appearing
words – e.g., disinterested and uninterested, impinge and infringe,
therefore and therefor (if one must ever use “therefor”).
It also means being sensitive to the varied connotations of words that
are close in meaning. Writing that is imprecise does not clearly convey
its message. It does not do its job.
Good legal writing gets to the point. Legal
writers typically favor using multiple
words where one will do, engage in unnecessary
formality or circuity of expression,
or adopt hackneyed “legalistic” phrases
that add to the length of a writing much
more than they contribute to its substance.
A reader who must sift through piles
of chaff for kernels of content will
rapidly tire of the effort. A reader
with other pressing tasks may decide
that attending to them is a more efficient
use of time.
The trial judge enduring a tedious examination
of a witness may ask counsel to “move it along.” The
same judge faced with a tiresome brief
cannot give the writer a second chance
to focus on the message.
The judge will decide what parts of the brief to read, skim, or skip,
possibly missing points the writer intended to make. A good writer will
not provoke the reader to seize control in this way.
Good legal writing rejects roundabout and redundant expression in favor
of direct statements and economical word usage. It expresses thoughts
in simple language. This does not mean, of course, that legal writers
should avoid legal terminology or that they should not deal with complicated
concepts. It does not mean that legal writing must be monotonous and
drab. Good legal writing necessarily speaks in legal language. It develops
complex ideas in an orderly and straightforward way. It is interesting
as well as communicative. Legal writing can be sophisticated, vivid,
and varied without becoming jargonized or numbingly polysyllabic.
Good legal writing has a beginning,
a middle, and an end. That is to
say, good legal writing follows a plan
of organization. The parts fit together
and make logical sense in the order presented.
The plan for a writing should be thoughtfully
constructed. Seldom does a written piece
flow straight from the writer’s mind to the page
with every item in its proper place. Developing an outline or other structural
plan should be the writer’s first step. Related topics or ideas
should be grouped together. Arguments should proceed from premise through
rationale to conclusion. Points that are essential predicates for later
points should be established initially.
In writing, the organizing plan should be diligently followed. The writing
should be organized at multiple levels, from large to small scale. The
order of sentences and paragraphs is as important as the overall sequence
of ideas. Stray thoughts need to be set aside for possible use elsewhere.
The urge to drop a footnote may be a clue that the thought is out of
place.
The organization of the writing should
be made clear to the reader. Good legal
writing offers guideposts to help the
reader follow the writer’s
developing thought. The reader must know where he or she is and is headed
at every point in the piece. An introductory passage can provide a helpful
overview. Good topic sentences tell what paragraphs are about. Clear
transitions show how paragraphs relate to one another.
Good legal writing is good re-writing. Good
writing is rigorously edited. Pride of
authorship, familiarity, fatigue, and
lack of time are obstacles to effective
editing.
A good writer will set aside time to
edit and will revisit the work afresh,
approaching it with a healthy skepticism and no preconceived notion of
what it is supposed to say. Careful editing will reveal excess words
and sentences or missing elements. It will show where the organization
of the writing breaks down or where a good organizational plan was not
followed, where the flow of thought has not been made clear, where the
writing sends the wrong message or no message at all, or where the writer’s
voice on the page simply sounds awkward to the reader’s ear. Careful
editing enhances the virtues of good legal writing: an unwavering, sharp
focus on the message; an absence of distractions posed by form or content;
clear and logical structure; simplicity and economy of expression.
How does one become a good legal writer? Practice helps. It also helps
to think critically about the writing that lawyers encounter in their
work every day. Think about it as writing, rather than as just
another opinion to analyze, treatise to review, or brief to counter.
Does it work? Does it communicate its message effectively? Or is it murky,
plodding, confusing, repetitive? Understanding why a writing succeeds
or fails leads to an understanding of the traits and techniques of good
legal writing.
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