The Deal Wot I Wrote

October 4, 2012

Is bad legal writing holding your career back?

Photo: Shutterstock

Most lawyers can’t write. Which means that the few that can are at a distinct advantage when it comes to impressing clients and getting ahead.

OK. We’re not talking about the lawyers-cum-novelists out there, without whom we wouldn’t have the likes of Perry Mason or Rumpole of the Bailey.

No, we’re talking about the writing lawyers do as a major part of their jobs: writing letters, contracts, briefs, agreements, and so on. On this score, few could claim to be really great writers. And if they did, clients might be quick to disagree.

Advocates of plain-speaking law (see the association of lawyers Clarity International) are working hard to convince lawyers to ditch the legalese, including terms such as ‘aforementioned’, ‘herewith’, ‘pursuant to’ and all the other flowerings of traditional legal prose. But even so far as such movements have been successful, the legal style remains. And this means writing that is often convoluted, verbose, ponderous, fiendishly complicated and long.

In the book Garner on Language and Writing (American Bar Association, 2009), US lawyer and former Solicitor General Theodore Olson takes a damning view of legalese : “All professions have it. All professions use it as a substitute for thinking, and they all use it in a way that makes them appear to be superior. Actually, they appear to be buffoons for using it. The legal profession may be the worst of all professions in using jargon. It’s not necessary to communicate that way. You’re really not communicating, and you’re not really thinking.”

A tad harsh? Perhaps. For a start, there are quite a few reasons for the legal style – beyond lawyers getting above themselves. For example:

  1. Translating complex, technical ideas and analysis into a simple and succinct narrative is incredibly hard. The language of law is the result, albeit an imperfect one.
  2. Tortuous text (with all the endless subordinate clauses) goes with the territory of watertight legal documents. Leaving out any detail from, say, a trust agreement could lead to legal, tax and financial implications later down the line.
  3. Writing from scratch is rarely an option. And for good reason. It is typical for lawyers to take clauses and paragraphs from previous opinions, judgements and prior client matters of a similar nature. They will then add paragraphs and clauses to reflect the specifics of the matter in hand. This is partly time-saving because lawyers are damned busy. But it’s also wise, using the trusted principle of precedent to ensure effective legal advice.

Given that it’s often lawyers reading other lawyers’ text, it doesn’t even matter. Who cares as long as you all speak the language? The problem is of course the outside world: namely, clients.

Clients in recent years have become more demanding of their lawyers. They increasingly expect more than just technical advice. They want their lawyers to demonstrate business and commercial nous. They want them to speak their language, not an archaic legal one.

A common complaint from clients is that lawyers communicate badly. They don’t return calls or keep them updated, and then a big bill lands on the doorstep with little explanation. When lawyers do communicate it’s in a document that’s 40 pages long that might cover all the bases but fails to actually get to the point.

This is why there is a growing body of opinion crying out for plain-speaking law. And it’s not impossible to achieve. Yes, some legal documents will always be complex. But the argument goes that they shouldn’t be totally impenetrable to the non-legal eye.

There seem to be a fair number of tips out there too (and from lawyers). Things like:

  1. Always use the active, not passive voice;
  2. Keep sentences short; and
  3. Don’t use 20 words when four will do.

Sounds simple, but lawyers routinely break all three of these key writing rules.

And the benefits? Well, a lawyer who learns to write clearly and as simply as possible will build better relationships with clients. They are the ones more likely to build a following. They might just win more cases too, with clear, succinct arguments that have the power to persuade. After all, the risk of an unfavourable interpretation only rises with the greater degree of complexity.

More lawyers today are going on plain-speaking legal writing courses, although it is by no means commonplace. By doing so, these anointed few may well find their careers get an unexpected boost. CP

 

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