"A writer is someone for whom writing is more difficult than others" - Bryan A. Garner
Last month I pondered why overworked attorneys should take time away from case management and spend it on the finer points of writing. Many lawyers consider these points secondary or tertiary when writing fact- and law-based arguments to persuade decision-makers. Yet while it's impossible to attribute the win or loss of a given case to the style of the papers, judges on the whole are clear about the type of writing they want to read, and hewing closely to their preferences - which skew almost invariably in favor of short and plain writing - never hurts one's position.*
So that's why, and I doubt we can get a clearer answer than that. The question then becomes how to achieve this plain-language ideal. I've read pointer after pointer after pointer and while suggesting that a list of good writing tips could be "infinite" is a little hyperbolic, no matter how long the list is it could never be exhaustive. But whatever the issue is, I don't think I've ever seen any advice which is incompatible with this, the overall mission of any conscientious legal writer: Make yourself invisible.
Restate this principle to yourself however you like so that the image is wedged into your head. "Place yourself in the background." "Don't waste readers' time." Or if you prefer classical phrasing, here's some from Sir Arthur Quiller-Couch: "the business of writing demands two—the author and the reader. Add to this what is equally obvious, that the obligation of courtesy rests first with the author, who invites the séance, and commonly charges for it. What follows, but that in speaking or writing we have an obligation to put ourselves into the hearer’s or reader’s place? It is his comfort, his convenience, we have to consult. To express ourselves is a very small part of the business: very small and almost unimportant as compared with impressing ourselves: the aim of the whole process being to persuade."
But what does this process look like? We'll start exploring it in the next post.
* Except that "[t]he price of clarity, of course, is that the clearer the document the more obvious its substantive deficiencies. For the lazy or dull, this price may be too high." Reed Dickerson, Professor of Law, Indiana University.