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2 DON'T MAKE IT LIKE IT WAS

Around the country, a select group of court watchers indulges an arcane hobby: collecting lawyers' dreck. A West Coast journalist sent us this specimen:

That on November 10, 1981, at 1:00 p.m. while plaintiff was a business invitee and customer, present at that certain real property, a Ralph's Market, located at 1725 Sunset Blvd., Los Angeles, California, and that at said time and place, the defendants, and each of them, carelessly and negligently owned and operated and maintained and controlled the said real property and particularly a shopping cart thereof, and the said cart was at said time and place in a dangerous condition, because there was no “seat flap” in the “upper” basket and a can fell through, breaking plaintiff's foot and it was unsafe for use by persons, including plaintiff, and directly because of such condition, and the negligently and carelessly maintained condition thereof the plaintiff was caused to and did sustain injuries and was proximately injured thereby as hereinafter set forth.

Fred Graham, a former Supreme Court reporter for the New York Times and CBS-TV and now chief anchor for Court TV, collected examples of particularly ghastly “questions presented,” the required statement of the issues in each petition for certiorari, “until,” he says, “I got discouraged.” Here are two of his favorites:

Whether, consistently with the due process clause and the equal protection clause of the fourteenth amendment, a state court may deprive a party, without compensation of his or its constitutional rights to property by validation of an invalid court determination through the aegis of res judicata, wherein such principle of res judicata was actually a premise for invalidation and nullity rather than the aforementioned validation.

Does it violate the fourteenth amendment of the United States Constitution for the highest court of the state, here the supreme court of Pennsylvania, when a petition for leave to appeal to it from a decision of an intermediate appellate court, here the superior court of Pennsylvania, to refuse allocatur even though the petition for such sets out clearly and unambiguously a claim of denial of due process of law guaranteed by the fourteenth amendment, and a claim that such refusal violated the Pennsylvania constitutional prohibition against impairment of contract, and a claim that a refusal of such a review is a violation of the corporation's right to a jury trial guaranteed at some stage of an arbitration proceeding by local case law where the jurisdiction of an arbitrator has been challenged?

Teachers, too, have their collections. On a constitutional law examination, one hopeful student referred to a “probable certainty.” Another cleared his throat: “First of all, the first problem to address is…” A classmate opined that “the right to publish and distribute political ideas is a tenant of the Constitution.” Another declared: “Treating AIDS sufferers and carriers as a suspect class would most likely not fly.” Still another informed her bewildered professor that “the state has a valid and compelling interest in keeping its locals clean and thus affixing stickers to telephone poles and lampposts may be valid.” The professor's eyes widened upon reading: “Concededly, the AIDS epidemic is a compelling governmental objective,” and stayed wide upon encountering: “The state has a conceivable interest in preventing bigamy or family values.” Other students noted that the statute could not “past muster” and that an assumption may help “to access the situation.” One advocated “repealment”; another spoke of a policy's “wiseness.”

I want every law student to be able to read and write. Half my first-year students, more than a third of my second-year students, can do neither.

KARL N. LLEWELLYN

Much of the current dismay over lawyers' writing reflects a belief that their writing went to hell only recently, that lawyers were once known for their elegant style. This view misses a good deal of history.

It reminds us of the story Edward I. Koch, the former New York City mayor, has often told about the elderly woman who stopped him on the boardwalk at Coney Island. She poignantly related how life had deteriorated. Crime was up, the air was dirty, the water befouled. “Make it like it was,” she implored. “I'll try,” Koch responded. “But it never was the way you think it was.”

A Short Retelling of the Attack on Legal Prose

Historically, lawyers' prose has never been free from attack. In fifteenth-century England, Chief Justice John Fortescue declared that the judges were giving effect to forms written in unintelligible language even though none could remember the reason for the language. In the sixteenth century, the lord chancellor stuffed a plaintiff's head through a hole cut in a stack of pleadings and marched him around Westminster Hall with the pages drooping over his shoulders. This public humiliation was a double insult: The pleadings were drawn by the plaintiff's lawyer, who had padded them with an extra hundred pages and then had the effrontery to charge his client more. A century later the practice continued: Chief Justice Hale denounced padding as serving “no other use but to swell the attorney's bill,” and Sir Francis Bacon urged editing of cases—“prolixity, tautologies and impertinences to be cut off.”¹

In the eighteenth century, Jonathan Swift rebuked lawyers for their odd speech: “a peculiar Cant and Jargon of their own, that no other Mortal can understand.” Jeremy Bentham was blunter, characterizing lawyers' language as “excrementitious matter” and “literary garbage,” even though his insistence on nouns in place of verbs contributed to the opaque quality of modern legal prose. Henry Fielding put in the mouth of one of his characters that “nothing is more hurtful to a perfect knowledge of the law than reading it.”²

In America, the critique of legal style is older than the republic. Thomas Jefferson, a pellucid writer of legal as well as ordinary English, mocked as “lawyerish” the orotund style of the day. Late in his career, long since retired as president, Jefferson wrote to a friend about a bill he had drafted in simple language:

You, however, can easily correct this bill to the taste of my brother lawyers, by making every other word a “said” or “aforesaid,” and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means; and that, too, not so plainly but that we may conscientiously divide one half on each side.³

Similar criticisms echoed through the nineteenth century, an age when reformers began to purge from the common-law system the worst of the archaic forms of pleading. The rules of pleading, as stylized as movement in a Kabuki play, had contributed to the prolixity and pedantry of legal writing. But centuries of bad habits had dulled lawyers' ears and addled their brains. Simpler procedures would not yield simplified writing.

In the twentieth century, criticism of lawyers' language intensified. In the early 1920s, for example, Urban A. Lavery, chief legislative draftsman for the Illinois Constitutional Convention, scolded his fellow practitioners:

How many lawyers ever consult once a book on grammar or on good use of English, where they consult a lawbook a hundred times?…The lawyer too often is a careless writer; and he, before all men, might write well if he but strove to do it. But he does not strive; he “dangles” his participles, he “splits” his infinitives, he scatters his auxiliary verbs, he leaves his relative pronouns and adjectives to die of starvation far removed from their antecedents; his various parts of speech are often not on speaking terms with their best friends.

In the 1930s three prominent law professors deplored the general illiteracy of the bar. In 1935, Karl N. Llewellyn, a professor at Columbia Law School, said: “I want every law student to be able to read and write. Half of my first-year students, more than a third of my second-year students, can do neither.” In 1936, in “Goodbye to Law Reviews,” a famous article in the Virginia Law Review, Professor Fred Rodell of Yale Law School wrote: “There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.” In 1939 William L. Prosser, then teaching at the University of Minnesota Law School, said of his students: “Very, very many of them are hopelessly, deplorably unskilled and inept in the use of words to say what they mean, or, indeed, to say anything at all.”⁴ Prosser illustrated his lament by reprinting this passage, among others, from a final examination:

The buyer has an action for breech of warenty if he has gave notice to the seller in a reasonable time Uniform Sales Act sec. 48 after he knows of the defect there is a trade name here but here he does not give such he has an action no action for breech of warenty also after he reasonably ought to of known the warenty would be implied warenty of merchentable quality here thirty days is too long. You could not bring fittness for the purpose here because there is a trade name Holden's Beer is a trade name buyer took initiative in asking for it so reliance on seller's skill and judgement not here but merchentable not excluded according to Cardozo if this is sale and not service I think it is sale and merchentable quality in spite of trade name but no notice and so no action for breach of implied warenty of merchanteble quality in spite of trade name.

In 1950 Arthur T. Vanderbilt, then Chief Justice of the New Jersey Supreme Court and formerly dean of New York University Law School, acknowledged “the well-nigh universal criticism respecting the inability of law students to think straight and to write and speak in clear, forceful, attractive English.”⁵ Nine years later, another frequent critic of legal writing, Dean William Warren of Columbia Law School, said at a symposium of the American Association of Law Libraries:

I know that some of my colleagues in other institutions have taken the position that their students are able to write. However, I can only tell you what the Bar thinks about this since I have talked rather extensively with many practitioners. Most members of law firms tell me that the young men who are coming to them today cannot write well. I think the situation has reached almost epidemic proportions.⁶

Carl McGowan, a Chicago practitioner later to become a distinguished federal appeals judge, complained in 1961 of the inability of lawyers to express themselves in English: “Most of the time our lights are hidden under literally bushels of words, inexpertly put together.”⁷

As academic and professional law journals have continued to denounce the “epidemic” of bad writing, the academy and the bar have responded by shelling out cash. Remedial writing entrepreneurs have launched businesses to tutor practicing lawyers. Law schools have almost universally added basic writing courses to their required curricula. A new professional discipline, the teaching of legal writing, has evolved, accompanied by its own journals and murky jargon (“reader-protocols” and “revision feedback”). Language columns have proliferated in bar journals, and books for students and practitioners have flooded the market.

Almost everyone who discusses law school students—or even, it may be added, young law school graduates—has an unkind word to say about their lack of adequate powers of oral and written expression in their native tongue.

ARTHUR VANDERBILT

Even the government has found it politic to act. In 1978 President Carter signed an executive order that federal regulations be written in “plain English and understandable to those who must comply with them.” Many states followed. Some large corporations began to rewrite consumer documents in plain English, both as a reaction to legislative pressures and as a public relations gimmick. But these initiatives have not proved long lasting. Principles of composition do not receive priority when new staff members are trained, and over time institutions forget the purpose of plain English and lose the skills to provide it. Every few years some government agency or another rediscovers the problem and promulgates yet another plain English requirement, as if the subject were new.

In 1998, for example, the Office of Investor Education and Assistance of the U.S. Securities and Exchange Commission published A Plain English Handbook. In his preface to the 77-page guide, the billionaire investor Warren E. Buffett confessed that after more than forty years of studying public company documents, “too often I've been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said.” SEC Chairman Arthur Levitt recommended that legalese and jargon “give way to everyday words that communicate complex information clearly.”⁸ The primary author of the manual, William Lutz (an English professor at Rutgers who has edited the Quarterly Review of Doublespeak) offers succinct advice: Use the active voice. Keep sentences short. Avoid legal and financial jargon, weak verbs, and superfluous words. Instead of “capital appreciation,” write “growth.”

Fourteen Causes of Bad Legal Writing

Critics of legal writing discern not one but many causes of the “epidemic” of bad writing. To bring some order to an often confused discussion, we have distilled from the literature fourteen explanations of why lawyers write badly:

 Sociological. Every profession needs its own symbols and codes.

 Professional. Lawyers are trained to be exhaustive researchers.

 Competitive. A competitive society demands prolixity.

 Legal. The law requires “legalese.”

 Economic. Lawyers make more money by writing poorly.

 Historical. Creatures of precedent, lawyers do what was done before, solely because it was done before.

 Ritualistic. People must believe in the majesty of the law, embodied in its ritualistic language.

 Technological. Modern machines are responsible for slovenly writing.

 Institutional. The pressure of business is responsible for unclear writing.

 Deterministic. The way lawyers write is the best way to accomplish the law's goals.

 Pedagogical. Lawyers never learned to write well.

 Cultural. Lawyers don't read enough or know enough of their heritage to write better.

 Psychological. Lawyers are afraid to reveal themselves.

 Intellectual. Lawyers don't think clearly enough.

Sociological

To function as a profession, every group of practitioners needs its own symbols, rituals, and practices to set it apart from the rest of the world. Stuart Auerbach, who covered legal affairs at the Washington Post, has speculated that lawyers' language serves “as a secret handshake in a fraternity, letting others know you are one of the tribe.” Or as Professor Lawrence M. Friedman of Stanford Law School said, a “specialized vocabulary reinforces the group feelings of members…. Legal style and the vocabulary of lawyers…are indispensable for the cohesiveness and the prestige of the profession.”⁹

This cultish quality of the language takes possession of all lawyers early in their training. What lawyer was not struck to learn in the first year of law school that “an action sounds in tort”? We were stepping away from our friends and college classmates, leaving them behind. They were becoming—“nonlawyers.” Since they were not lawyers, they were something much less: They were the laity. Alone among professionals, lawyers exclude the rest of the world in their very name for others. Who has ever heard of a “nonteacher,” a “nonjournalist,” or a “nondoctor”?

“Strange style,” as Professor Robert W. Benson has called it, binds lawyers, in their own eyes, into a fraternity.¹⁰ In short, lawyers conform to a way of writing so that colleagues will not think the worse of them.

The sociological explanation suggests that lawyers will never rid themselves entirely of their technical language. That lawyers, like all professionals, desire fraternity does not, however, explain writing that is incomprehensible even to lawyers themselves.

It would be desirable that each student who graduates from this school know how to read and write. I do not consider this objective to be a modest one; on the contrary, it is extravagantly ambitious.

GRANT GILMORE

Professional

The professional explanation purports to justify verbosity, obscurity, and vagueness. Lawyers are trained, as the cliché goes, to leave no stone unturned: The diligent lawyer will search through every case that even remotely bears on the problem and will digest each one in a brief or memorandum. It is considered less than professional—it might even be malpractice—to omit any possible strand of argument, or any case that strengthens that strand, no matter how tangential. Hence verbosity.

Likewise, lawyers allege professionalism to justify much of the cryptic quality of their prose. Knowing they have a losing case or a difficult message, they express themselves opaquely to keep the courts or others from acting contrary to their clients' interests. The difficulty with this explanation is that it presumes that much that is cryptic has been made so deliberately. There is little evidence for this proposition. Nor is there evidence that intentional obfuscation is a sound strategy. Furthermore, purposeful obscurity is difficult to accomplish; it takes a writer who knows how to write clearly to achieve a convincingly murky style and still stay out of trouble.

Moreover, this explanation fails to distinguish between a style that is unnecessarily opaque and the expression of critically important concepts that are by their nature vague. Consider the following two legal concepts:

The legal requirement that a person act “reasonably.” The word expresses a legal standard impossible to define precisely. That is not a fault of the writer but a virtue of the law. Norbert Wiener, the eminent mathematician, argued that the law should always say exactly what it means; it should never use ambiguous concepts.¹¹ But some legal concepts—due process, equal protection of the laws, executive power—are inherently vague; to fix their boundaries for all time would rob us of the flexibility necessary to a free society.

The Supreme Court's 1955 ukase in Brown v. Board of Education that school desegregation proceed “with all deliberate speed.”¹² Legitimately or not, the Court chose that vague phrase to avoid the serious dangers it foresaw had its language been more concrete.

Compare these examples with this recall notice to automobile owners, a favorite example of Joseph Williams, author of Style, one of the best books on clear writing: “Sudden hood fly-up beyond the secondary catch while driving…could result in vehicle crash.”¹³ The concept is not at all complicated; rather, the drafter chose cloudy language to mask the danger. Even if the client demanded this obscurity to inhibit purchasers from demanding free repairs, the notice is irresponsible—and nothing in the law requires that kind of dismal prose.

Defenders of the verbose style of statutory language—those overblown sentences dozens of lines long, with series of subjects (“person, organization, company, association, group, or other entity”)—insist that verbiage closes loopholes. If statutes were not verbose, they argue, courts would exploit the loopholes they are so adept at discerning. Sometimes that argument is true, and sometimes lengthy statutes are necessary. But this sense of professionalism does not justify the style in which the statutes are written; nor does it justify prolixity in documents that are not legal instruments.

Competitive

In our competitive society, the client wants every edge. Some lawyers and their clients insist that no argument, no matter how trivial, be overlooked or underplayed. If contracts are to be airtight, their clausestend to be prolix, multiple, and often redundant. Language in an adversary culture evolves into a precision tool for accomplishing a range of ends. But the symptoms are broader than the cause. A litigious society will depend on lawyers who follow every byway of a case, but it does not dictate the writing of every point at maddening length or in obscure style.

Legal

Sometimes lawyers justify legalese by pointing to the law itself. Many words have settled meanings; substituting plain language—that is, words other than those to which the courts are accustomed—can lead to litigation. For some terms, the argument has merit. The common example is the medieval requirement that a fee simple could not be transferred unless the land was sold “to X and his heirs.” A sale “to X and his children” would not be effective. But the courts are less formalistic today, and fewer words have rigid meanings. Moreover, few words, even the most arguably precise terms of art, have escaped being broken on the interpreter's rack: The meanings of herein and whereas, for example, have stirred up plenty of lawsuits.¹⁴

In any event, the legalistic approach yields a policy at cross-purposes with itself. If legalese is so refined that it prevents litigation, the wording will probably be unintelligible to the clients who sign the instruments. Because it is unintelligible, the clients may go to court claiming that they did not understand what they were signing. At best, the term of art may win the case, but it will not prevent a case from being filed. A clearly worded contract, on the other hand, may keep the parties out of court altogether.

Economic

There are two economic explanations. First, lawyers use language as a tool to maintain their economic perquisites, and second, legalese is a tool to save time and money. Steven Stark, who has taught writing to lawyers and law students, argues that “lawyers write badly because doing so promotes their economic interest…. If lawyers stopped writing like lawyers, they might have trouble charging as much for their work.” As long ago as 1939, Fred Rodell insisted that the legal trade “is nothing but a high-class racket” because the public is “scared, befuddled, impressed, and ignorant.”¹⁵ That is why lawyers write in legalese and produce mounds of paper—at least when paid by the hour. If clients knew what the Latin phrases meant, they would never pay for the lawyer's services.

Such arguments are speculative. Whatever may once have been the truth about Latin incantations, law has become so complex that clients who receive advice in the form of memoranda or letters, or who buy legal instruments such as wills, are more likely to be grateful if they can understand what they have paid for. Although lawyers were once paid by the word, in America this practice died out long before the turn of the twentieth century. Billing is based on time, not on word counts. But it takes more time to produce a shorter, clearer, more readable document, because revising and editing are time-consuming. If generating higher legal bills were the goal, lawyers would produce shorter documents, not longer ones.

A second economic point is made by Lawrence Friedman, who suggests that legal terms of art were invented as helpful shortcuts.¹⁶ Legalese is thus an efficient way to write, one that saves lawyers time and saves clients money. The validity of the argument depends on how much legalese is used and if the audience for whom it is intended can understand it. Using technical terms in front of the court surely does save time—lawyers would appear foolish, and feel foolish, testing out synonyms for stare decisis or collateral estoppel. But an opinion letter filled with such terms is not necessarily efficient. “Why force your reader to parse and chart your prose?” asked Mark Matthewson, an Illinois practitioner, in an article addressed to prospective lawyers: “The writer should be doing that work, not the reader. Think of it in economic terms—there will almost always be fewer writers of a document than readers, and the interests of efficiency will surely dictate that the writers, not the readers, translate the prose into simple form.”¹⁷

Historical

Lawyers are conservative, innately cautious, and often do what was done before solely because it was done before. As Jacques Barzun suggested to us, lawyers use strings of synonyms out of habit. We all know that the hold of habit is strong, but it rarely justifies what we are doing. Justice Holmes once wrote in a different context, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”¹⁸

Ritualistic

Because law is a system of social control, it depends in a democracy on faith—not guns—to achieve its purposes. People must believe in the majesty of the law. The language of the law is, according to this argument, a form of magic, a ritual incantation. (Centuries ago, the ritual function was all there was. The litigant or lawyer would recite a formulaic defense, and if he stumbled or misspoke, his misstatement was taken as a sign from God that his cause was wrong.) In some contexts even today, such as the taking of an oath (“the truth, the whole truth, and nothing but the truth”), ritual phraseology “is designed to convey, not information, but emotion—fear, awe and respect,” says Lawrence Friedman.¹⁹ But in a secular age, such talismanic purposes of language will necessarily be few.

Some defenders of legalese argue, however, that customers may draw comfort from the archaic. An employee of Siegal & Gale, a New York firm that specializes in simplifying the language of legal instruments, told us that some clients distrust documents that do not have the reassuring “whereases” and “heretofores.” And Peter Lubin, a Cambridge writer and lawyer, wrote in the New Republic that he was quite impressed when the lawyer representing him in answering an unfair small claims action produced the following lines: “Now comes the Defendant and for his answer denies, Each and every allegation of the Plaintiff's complaint. And further answering says, that if he ever owed the Plaintiff anything, he owes the Plaintiff nothing.” Lubin extolled this language as “beauty on the level of the Bible and Shakespeare,…. part of what creates the mystery and majesty of the law.”²⁰

What is disturbing is that law schools…find themselves in the situation that even the good writers do not know the difference between “its” and “it's.”

DAVID G. TRAGER

This is more whimsy than sense. There are few such phrases and, we suspect, even fewer admirers of them. Again, magic explains only phrases, not the panoply of writing faults in which lawyers regularly engage.

Technological

In the early 1960s, David Mellinkoff blamed the typewriter for contributing to verbosity: fingers waltzing along a keyboard could turn out copy far faster than a hand cramped from dipping a pen in an inkwell. He also noted that electronic data retrieval, like its predecessors “in the arts of availability,” is “ruled by a corollary of Parkinson's Law: the data to retrieve increases as it becomes more retrievable.”²¹ Since then, the photocopier, the computer, the optical scanner, the facsimile machine, and the Internet have contributed to the ease with which lawyers can quickly create long documents. Because they can get words down on paper so easily and without scanning every line, lawyers may be less likely to take the time to consider style and content.

Institutional

Modern law practice is a business, with institutional imperatives of its own. Few law firms working at a leisurely pace survive. From the most senior partner to the most junior associate, private law firms (and most public law offices too) are pressured to crank out paper. The pressure of business means that human energies are focused more on technical matters—meeting deadlines, checking footnotes, getting documents printed—than on thinking. Fewer hours are available for thinking through a problem, writing down one's thoughts, and editing a series of drafts. It is far easier, and seemingly safer, to borrow from previous documents than to rethink and rewrite. Add the lawyer's fear of originality, and the consequence is that lawyers reproduce not just words from a document but its tone and style as well. To be sure, boilerplate may be appropriate, but it does not belong everywhere.

Students seem more than ever to think that some kind of human right is violated when we hold them to high writing standards.

RICHARD K. NEUMANN JR.

The institutional pressure can be even more unremitting on the small-firm and solo practitioners. Always pressed for time, often competing with large firms that can drown them in paper, the small-firm practitioners understandably, if unfortunately, are inclined to regurgitate old copy.

Other institutional habits also diminish the quality of writing. One is the tendency, observable at nearly every level of every institution (it is by no means confined to law firms), to ask someone lower on the organization chart to write for someone higher. Outside the legal profession, this practice often goes by the name ghostwriting. A generation ago, Carl McGowan commented on “the extraordinary degree to which the successful lawyer may get out of the habit of writing anything himself…. Some of our best men at the bar may be doing very little initial composition; and we all know how the first draft tends to set the style and tone of any piece of writing.”²²

Still another development that multiplies words is the expansion of staff. Many of the lawyers and judges we have spoken to have pointed to the baneful effect of more law clerks on the length and quantity of judicial opinions. Former Justice Richard Neely of the West Virginia Supreme Court said that hiring more clerks increases the level of “pseudoscholarship”: “While judges used to be good old boys who penciled out their opinions in longhand, now they simply figure out the bottom line and tell some magna cum loudmouth smartass clerk to cobble up the reasons in an opinion. The clerk has little idea how everything comes together. But he knows how to use a library. Thus, the ever rising level of crap in reported cases.” Similarly, Patricia M. Wald, long-time Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, told us that judges are understandably reluctant to disappoint the clerk who has researched and written a lengthy memorandum about a pending case. So they incorporate the pages in the opinion.

Deterministic

Some critics say that lawyers' abstruse writing reflects their abstract way of thinking about the world. Steven Stark concluded that “poor writing is as much a consequence of the way lawyers look at the world as is their ability to read a contract and find consideration.”²³ This bent toward abstraction, Stark argued, prevents lawyers from writing clear stories that others can follow.

In the heels of the higgling lawyers, Bob, Too many slippery if and buts and howevers Too much hereinbefore provided whereas, Too many doors to go in and out of.

CARL SANDBURG

Law professor Richard Hyland rebutted Stark's notion in a lengthy defense of legal writing.²⁴ Storytelling, Hyland observed, is one of many levels of discourse, and it is not the level most deserving of a lawyer's time. Instead, lawyers must focus on the higher conceptual plane. Rather than blame lawyers for writing what the public cannot understand, Hyland suggested that the public recognize that the conceptual complexity of legal writing is necessarily beyond general understanding.

But even at the conceptual level, lawyers fail. Lawrence Grauman Jr., a San Francisco—area writer and editor with a special interest in law, expressed it best:

Most lawyers appear to regard language and prose as merely an inconvenient vehicle (what they would term “style”) for the accommodation of ideas or argument (what they think of as “content”), rather than as the very fiber of, and inseparable from, thought (or at least distinctive perception) itself. Few lawyers would wear a second-hand suit, but most are comfortable wearing well-worn or mass-produced language. And frequently the same lawyers who select their clothes to make a visual impression use language merely to make a verbal impression or to inflate their self-importance.

Every time a lawyer writes something, he is not writing for posterity, he is writing so that endless others of his craft can make a living out of trying to figure out what he said.

WILL ROGERS

Hyland's concern with whether the public understands legal writing diverts attention from the more vexing problem: even other lawyers cannot fathom what their colleagues are writing.

Pedagogical

The simplest explanation of why lawyers write badly is that they were never taught how to write well—not in high school, not in college, and not in law school.

Participants in a symposium in the Yale Alumni Magazine in 1976 expressed a familiar complaint of the 1970s and 1980s: “Anyone who reads student writing today knows that students can't write.”²⁵ The students of 1976 who could not write are today's partners who, in turn, are responsible for supervising the writing of new associates. At that symposium, A. Bartlett Giamatti, who later became president of Yale and then commissioner of baseball, explained how cultural longings denied students their ability to express themselves:

Today's college students—the former grammar and high school students of the late 1960's and early ‘70’s—have lost touch with the language….

…They have come out of the sentimental ‘60’s…out of a primary and secondary world where “personal development” was said to be worth more than achievement, where “creativity” was the highest goal and was often completely divorced from one of its essential components: discipline….

What has happened? I believe that of all the institutions attacked in the past dozen years—governmental, legal and educational—the one that suffered most was the institution of language itself…. This institution—language—was perceived as being repressive. It was thought to be the agent of all other repressive codes—legal, political, and cultural. Language was the barrier that blocked—blocked access to pure feeling, blocked true communal experience of the kind that flowered at Woodstock, blocked the restoration of Eden.²⁶

Many schools are now focusing on language skills courses, but their rigor is open to question.

Still, too much can be made of what happened in the late 1960s. Even a nodding acquaintance with the complaints of educators over the years shows that the quality of too much student writing, in general, and law student writing, in particular, has always been problematical. In 1953, speaking of past generations, Jacques Barzun, the eminent critic and scholar, asked, “How do people write who are not professionals or accomplished amateurs?” His answer: “Badly, at all times.”²⁷

The time traveler can easily confirm Barzun's observation. In the seventeenth century, leading British intellectuals clamored for admission to the new Royal Society, dedicated to scientific discovery and invention. In their history of the period, Jacob Bronowski and Bruce Mazlish have said: “More important than any formal symbolism, however, scientific work, to be understood, needs a clear expression in words. This the Royal Society stressed from the outset…. The Fellows of the Royal Society were exhorted to report their findings ‘without amplification, digressions, and swellings of style.’” When the poet John Dryden was admitted to the Royal Society, he was promptly put to work simplifying the scientists' prose.²⁸

Each generation of critics has despaired anew over the ostensible decline of English and has blamed the deterioration on the failures of an earlier generation to teach it well. To spare law faculty from having to give instruction in grammar and composition, the University of Chicago Law School created the first legal writing course in the late 1930s;²⁹ many other law schools adopted the practice in the 1940s. But even after decades of complaints and reforms, most legal writing courses devote little attention to reading good writing or to criticizing bad writing. During three years of law school, the required readings—appellate opinions—are selected for their substantive meaning, not for their quality of expression. As it happens, many judicial opinions are dreadfully composed, in no small part because the profession has no mechanism for criticizing the prose style of opinions. Writing is learned by imitation, and yet generation after generation of law students are given poor models to emulate. Consider, for example, the following paragraph from Pennoyer v. Neff, 95 U.S. 714 (1877), a basic case in civil procedure read by all first-year law students, often in the first week of school:

The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” and the Act of Congress providing for the mode of authenticating such Acts, records and proceedings, and declaring that, when thus authenticated, “They shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the States from which they are or shall be taken.” In the earlier case, it was supposed that the Act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the Act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject-matter….

Robert Leflar, a former justice of the Arkansas Supreme Court, has observed that the opaqueness of judicial writing is rarely challenged or criticized. The judge “may receive no real criticism of his writing for months or years. Unlike ordinary editors or publishers, the state reporters and the West Publishing Company never refuse to print his opinions, nor do they even edit them. His writing is published whether good or not. Almost no one except law review editors and losing litigants criticize his work, and even these critics usually dwell only on the correctness of his legal analyses rather than on the quality of his presentation.”³⁰

One style held out as a model is the law review essay. It should not be. In his characteristically blunt fashion, Fred Rodell blamed legal style on what lawyers learn as law review editors, when they are “brainwashed” into thinking they must write in a “straitjacket” style, the lawyers' “brand of professional pig Latin.”³¹

Like judicial opinions, law review articles are seldom criticized for their density and opaqueness. As law reviews proliferate—more than 650 are now published—the law review style spreads. Journal editors move on to clerkships, and in those jobs they re-create what they have learned: unending essays, numerous footnotes, suffocating prose—all taught by people who are themselves far from being students of good writing. Many lawyers say they learned how to write and edit on a law review. But the question is what they learned. If you are taught by people who prefer long-windedness, you will likely adopt that long-windedness. In criticizing law review writing, we do not mean to be anti-intellectual, but we do mean to observe that good writing is rarely taught, bad writing usually absorbed. Although many lawyers deplore the style of law reviews, few suggest how to improve the style, and few pledge to refrain from writing for the reviews.

Cultural

Two centuries ago, the tiny social elite that could write also tended to read. The intellectuals of the day, including the learned professionals—lawyers, clergy, and doctors—read the classics and the leading contemporary works. By the mid—twentieth century, that common culture had vanished. In 1950 Arthur Vanderbilt lamented that “no instructor in any class in any law school can make a reference to Plato or Aristotle, to the Bible or Shakespeare, to the Federalist or even the Constitution itself with any real assurance that he will be understood.”³² Today, most learned professionals are drowning in technical literature and have little time for reading outside their field.

Lawyers who do not read broadly fail to develop the nimbleness of mind that distinguishes good from bad writers. Carl McGowan recalled the comments of a Supreme Court justice who complained that the quality of briefs and oral arguments before his court was “distressingly low.” The justice, whom McGowan did not name, lamented “the narrowing cultural range of the profession,” which he attributed to “the restricted reading habits of lawyers, both in terms of the small amount of time devoted to general reading and the ephemeral character of what is read.”³³

They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters.

THOMAS MORE, Utopia

What lawyers do encounter in their narrow reading is bureaucratic double-talk (among McGowan's examples: the Pentagon's description of appropriations not already spent as “unprogrammed in no-year accounts”). As George Orwell pointed out in “Politics and the English Language” (1946): “[Our language] becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.”³⁴ Beset by euphemisms (“terminations with extreme prejudice” for “kill”), obfuscations (“inoperative statements” for “lies,” and “revenue enhancements” for “tax increases”), and other forms of Newspeak (presidential quibbles about “what the meaning of is is”), lawyers find it difficult to think or write clearly.

Psychological

As representatives, lawyers hesitate to intrude their personalities into the affairs of their clients. Trained to identify more with process than value or outcome, exhorted to refrain from vouching personally for their clients' bona fides,³⁵ lawyers are distanced from the merits of their causes. But writing is a personal act, which reveals the writer in the act of writing. To avoid or minimize the revelation, lawyers transfer the masks that they wear in public to the prose that they put on the page.³⁶ The passive voice, the fuzzy phrases, and the circumlocutions that permit the lawyer to sidestep the simple “I” may all be understood as lawyers' attempts to keep themselves from being on display.

Intellectual

The final explanation is the most devastating: Lawyers lack the aptitude, or at least the training in logic, to think clearly, and their muddy writing reflects their muddled thinking. Hyland, for example, concluded that many lawyers suffer from a disorder far more serious than lax style: they succumb to “the irrelevancies that reveal the absence of disciplined thought.”³⁷ Unable to assess the validity of an argument, they toss in every point they can think of, hoping one will capture the justices' fancy.

I know you Lawyers can, with Ease, Twist Words and Meanings as you please; That Language, by your Skill made pliant, Will bend to favour ev'ry Client;

BENJAMIN FRANKLIN

True, the more complicated a legal problem, the more likely a lawyer will flounder, but Hyland's diagnosis is flawed (as is his bizarre notion that most lawyers are incapable of thinking clearly because they have not been trained in Latin, Greek, or comparative law). Many legal problems are simple enough for any practicing lawyer to grasp. Failure to organize a document logically cannot be attributed solely to an empty head. Poorly organized thought and cloudy concepts are also products of laziness and inadequate grounding in what constitutes clear expression.

Poor writing is often just that. Lawrence Friedman, after discussing the purposes that legal language rightly fulfills, notes that “law books are full of incredible quantities of plain bad style—clumsy, pompous legalese and tedious, obscure prose—which is neither good law, good magic, nor good history.”³⁸

That it is imperative for lawyers to learn how to express themselves more clearly—against all the social and personal forces we have just explored—is, we think, almost a tautology. Some have doubted it, however. In 1986 Richard Hyland asserted that good writing makes little difference because “prose itself seems to be losing its hold as the prime medium for the communication of thought”; in 2000 Professor Richard K. Sherwin concluded that “print-based culture” has been replaced by an “image-saturated culture,” in which people look “at the signs and symbols that flow by, rather than through printed words for whatever meanings they may offer.”³⁹ We reject the implications of this “McLuhanacy.”⁴⁰ Despite all the new technology, with its powerful capacity to organize and display graphic enhancements on the page, despite torrential story-telling told in television and movies, language still matters. If a picture is worth a thousand words, a few words can summarize, organize, and explain a thousand pictures. The lawyer's job is, as it always has been, to communicate legal thought in understandable prose.