Why do so many lawyers (and judges) assume their readers are idiots?

This afternoon I was reading a federal court filing in a case involving a number of parties. The lawyers who drafted the filing engaged in a practice that ought to be, well, grounds for public humiliation. Let me give you an example of the practice:

Defendant Mickey Mouse (“Mouse”) moves for summary judgment against Dwarf Doc (“Doc”), Dwarf Happy (“Happy”), Dwarf Sneezy (“Sneezy”), Dwarf Sleepy (“Sleepy”), Dwarf Bashful (“Bashful”), Dwarf Grumpy (“Grumpy”), and Dwarf Dopey (“Dopey”).

Figured out what it is? It’s telling your reader that you don’t believe she can figure out on her own that when you later write Mouse you are referring to Mickey Mouse. Why on earth would anyone clutter up their prose with this? In my example, there are eight extra words that do nothing to help advance the client’s case. In an age when word counts are enforced by some courts, the practice just eats into the words you could use to persuade the court.

Judges, I should note, are not immune from criticism here. How many appellate opinions begin with something like this:

Robert Smith (“Husband” or “Robert”) filed for dissolution of marriage against Alice Smith (“Wife” or “Alice”). In this appeal, Husband argues that the trial court erred in awarding custody of the parties’ child to Wife.

If there are only two parties to the case, why is it necessary to put names or labels in quotation marks? The following is just as clear yet lacks the clutter that can make the sentence harder to read.

Robert Smith filed for dissolution of marriage against Alice Smith. In this appeal, Robert argues that the trial court erred in awarding custody of the parties’ child to Alice.

When asked about this practice, many lawyers and judges will say that they simply want the reader to be clear about whom the writer is referring. This makes sense if there are a number of similarly-named parties and keeping them straight is important. But when parties have distinctive names, this justification fails. In many instances, lawyers do this probably because as young lawyers they saw others do it, and thought that this is the way lawyers should write.

Mule muffins! Lawyers should write with clarity and in English. We don’t see novelists starting off their works like this:

Call me Ishmael (“Ishmael”)…

This practice needs to be eliminated promptly, lest we lawyers be accused of charging our clients by the number of words in the document.

Keep in mind that this practice can be abandoned in transactional work as well. A contract that might begin like this:

Robert Jones (“Buyer”) agrees to purchase from Alice Doe (“Seller”)…

can be just as clearly written like this:

Robert Jones agrees to purchase from Alice Doe a certain 2013 Audi RS5 automobile. Buyer agrees to pay the sum of $100,000 to Seller…

Any reader with a modicum of sense and intelligence will be able to figure out on his own that Robert is the buyer and Alice is the seller. There’s no need to insult the reader’s intelligence by inserting the labels in parentheses and quotation marks.

How long have you been insulting your readers? How much longer will you keep doing it?

Let’s work on eliminating this junk from our language, one lawyer at a time. I pledge to not allow this stuff in any document that bears my name or my authorship. Who will be second to make the pledge? Who will be next after that?

Advertisements

Lawyers, don’t wear belts and suspenders

Fortunately, most lawyers do not commit this fashion mistake—at least not in the way we dress. Many lawyers make this mistake, however, when it comes to writing.

How many times have you seen something like this:

Enclosed please find one (1) original and three (3) copies of the…

Too often, I’ll bet. Almost every lawyer does it, even though it is entirely unnecessary and, well, Bozo-the-Clown-silly. This belt-and-suspenders approach may have arisen when much of the population could not read but could recognize numbers. Well-respected legal writing expert Bryan Garner suspects that this practice grew out of a fear of typographical errors. Today, lawyers do this all the time for one simple yet groundless reason: it’s always done this way.

No matter what its origins, we ought to stamp this practice out for good. Today, there’s no reason to write out a number followed by the corresponding numerals in parenthesis. It is highly unlikely that someone will mistake your “ten” for a “one.” Even the most clumsy typist is not likely to type “two” instead of “ten.” If dropping this repetitive motif will cause you to lose sleep, break out in hives, and perhaps wet the bed, then for Pete’s sake please limit the practice to formal legal documents such as deeds or contracts. As Garner points out in his Dictionary of Legal Usage, no one wants to receive a letter that says, “Please give my regards to your two (2) children.” If you do this sort of thing in your cover letters or even informal, personal correspondence, people are liable to think you are a prat.

Here are my rules when it comes to numbers in a document:

  • Never start a sentence with a numeral. Spell out the number instead: “Four score and seven years ago…” rather than “4 score and 7 years ago…”
  • Smaller numbers can be written out if they appear anywhere but at the start of a sentence: two, ten, sixteen, etc.
  • Any number greater than twenty should probably appear in numerals: “22” rather than “twenty-two.” It has to do with ease of reading, and the line drawn at twenty is admittedly arbitrary.
  • Unless you’re writing out a check, there’s no need to write “One Thousand, Seven Hundred and 52/100 Dollars” in a document. Just write “$1,700.52.” It’s easier to type and easier to read.

There are probably more rules I could suggest, but following these and getting rid of those ridiculous redundancies like “ten (10)” will go a long way to making your writing more readable. Your readers will appreciate it.

Legalese and other words to banish

It’s Friday, so I figured a slightly snarky post of language pet peeves might be in order.

“…and, also a new CD will be released…”

I heard that on a satellite radio station this week, and it bugged me. One of those two options was more than adequate, yet the redundancy “and also” is frequently used. Knock it off. We wouldn’t say “and and” or “also also,” so why “and also”?

Another word for lawyers and judges to get rid of: enjoin (as well as its various forms such as “enjoined”). Other than those who speak legalese, does anyone use this word? We see it often in court orders: “The parties are enjoined from…” If you are one of the parties, do you know what it means? If not, how can you comply with the order? What’s wrong with the word prohibit? Everyone knows what “prohibit” means, so why not just use it instead of “enjoin”? Parties will understand it, and no one will feel like the lawyers and judges are talking down to them.

Comes now This has driven me crazy since day one of my law practice. “Comes now the plaintiff, by John Lousywriter, and moves this Honorable Court to enter an order…” How about a nice simple “Plaintiff requests the Court to enter an order”? (But not one enjoining anything!)

Purported This word must be used carefully. We often use it as a synonym for “alleged” or “claimed.” Purported means those things, but with a degree of skepticism. You might write, “The alleged burglar was actually in Sacramento on the date of the crime.” It might be stronger to say “The purported burglar was actually in Sacramento when the crime occurred.” Still, “purported” is one of those words that only lawyers use. Bah. Get rid of it.

Why should we get rid of these words and other legalese? I think the answer is simple. We lawyers have all seen pro se parties fill their pleadings with various bits of legalese, often to an unfortunate degree. It’s almost as if the person feels they have to say the right magic word. Really, we know deep inside that simpler is better. Would anyone rather read Faulkner’s stream of consciousness over Hemingway’s short sentences?

There’s one more reason to get rid of legalese. When legalese is used, it looks as though the lawyer is hoping the over-formality of the writing will be persuasive. Sadly, it never works, and the reader can see right through it. The old adage, “If you can’t dazzle them with brilliance, baffle them with bullsh**” doesn’t work in legal writing.

Lawyers, get rid of the extra junk in your documents

One of my colleagues this week asked me to review a draft of a complaint, and it inspired me to write about some silly habits we lawyers have. It is common practice for lawyers and judges to do things that are unnecessary, and in some cases even insult our readers. Let me offer a couple of examples:

  • When we refer to an agency or company that can be abbreviated, we will write something like Apple, Inc. (“Apple”), or South Bend Community School Corporation (“SBCSC”), or John Hancock (“Hancock”), or even worse William Wilson (hereinafter “Mr. Wilson”). There’s no reason at all to do this in 99% of all cases. It is almost as though we do not trust our reading audience to figure out who Apple or Mr. Wilson refers to. The idea here is that we do not want our audience to be confused, but unless there’s a real danger of confusion, we shouldn’t assume our audience isn’t bright enough to realize who we mean when we write “Mr. Wilson.” Even when there are two Wilsons, like in a divorce case, a judge is smart enough to realize that Mr. Wilson is the husband and Ms. Wilson is the wife.
  • When we use numbers, it is common to say “One (1)” or “Three Hundred and No/100 Dollars ($300.00).” In days of yore when literacy rates were rather low, using this belt-and-suspenders approach made sense. A person might not know how to read a word like “ninety,” but he could understand “90.” Today, it’s much better to simply use one or the other because the reader’s eye is not interrupted by the redundancy. (Admit it—the last time you saw something like “Three million, eight hundred seventy-six thousand, four hundred eighty” your eyes skipped ahead to the 4,876,480.)

Comedians and commentators like to make fun of “legalese” or “charging by the word,” which is nothing more than a way of showing disrespect for lawyers. Why are we helping to reinforce this negative reputation? By getting rid of the useless junk, our documents will have less legalese and be friendlier for our audience. Using the right word is important, of course, but there’s no reason to make a document harder to read simply because “we’ve always done it that way.”

My guess is that many lawyers will feel a great deal of angst over removing this clutter from documents. There’s no need. I have been writing this way for years, and not once has a judge or another lawyer complained that they were confused because I didn’t explain who “Principal Robert Jones (Principal)” was. Don’t take my word for it: no less an authority than Justice Antonin Scalia and Bryan Garner have called for lawyers to get rid of the excess acronyms and the like. See Making Your Case The Art of Persuading Judges by Scalia and Garner (2008).

(I suspect that on the issue of numbers, many lawyers will argue that the “two (2)” approach helps avoid typographical errors like “one (10).” Fair enough—but when you proofread the document to make sure the right number is there, you can instruct your assistant to delete the redundant reference for the final version. Use the belt-and-suspenders approach for drafts, but make your final document look like the professional document it should be. If you’re not proofreading your documents, you have larger worries than whether that 1 should be 10.)