“If you can write an elegant algorithm, write a legal brief, write a thousand words of prose, look at a sea of unambiguous data—If you can do these types of activities to produce outcomes that are rare and valuable, people will find you—regardless of how many Instagram followers you have.” —Cal NewportRead More
One delightful string of adjectives describes legal writing as
flabby, prolix, obscure, opaque, ungrammatical, dull, boring, redundant, disorganized, gray, dense, unimaginative, impersonal, foggy, infirm, indistinct, stilted, arcane, confused, heavy-handed, jargon and cliché ridden, ponderous, weasling, overblown, psuedointellectual, hyperbolic, misleading, incivil, labored, bloodless, vacuous, evasive, pretentious, convoluted, rambling, incoherent, choked, archaic, orotund, and fuzzy.
Alas, these attributes have deep roots. "Our profession learned law before it learned English," notes plain-language guru David Mellinkoff. And ever since 1066 when the French-speaking Normans, accompanied by their Latin legal documents, invaded England—the source of U.S. jurisprudence—advocates of straightforward laws and ungarbled precedent have had a fight on their hands.
The other posts in this series went over some general principles of plain English writing. But these efforts take time, and in the end, do any of them matter? Why invest in clarity and concision if the people reading your papers don't care?
What have studies found?
Let's be blunt: Does the quality of your writing control the result of your case? Honestly, it probably doesn't. In an empirical study of whether "readability," or the length of words and sentences, bears on an appeal's chance of success, the authors found no correlation between readability and outcomes. But they also noted that readers, including judges, generally prefer conciseness and readability, and these readers value "readable" writers as more credible.
One of the original academic works on this issue asked readers to assess passages written in legalese or plain English. Respondents who read legalese rated these passages as weaker and less persuasive than the respondents who read the plain English versions. They also accorded the authors less professional prestige. In another survey, distributed to 800 judges, two-thirds of the respondents preferred plain language to legalese, while another set of respondents would rather see informal language than legalese.
What have judges said?
Judges themselves acknowledge the significance of succinct direct writing. The Hon. Murry Cohen, an appellate judge in Texas, addressed this exact question, stating "I used to think [good writing] doesn't matter so much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don't even think about it."
In 2003, District Judge Lynn Hughes published an outline entitled "Clearing the Fog of Words: Writing for Effect and Efficiency," which describes some of the "simplified, clear forms" that judges want to see. Judge Alex Kozinski of the Ninth Circuit, on the other hand, issued advice to an audience on how to lose an appeal. He recommends using a "fat brief" which "tell[s] the judges right up front that you have a rotten case," and then to "use convoluted sentences," personal attacks, legal jargon, and plenty of Latin to distract the court from your main argument.
Critically, bad writing undermines its own credibility. In a review of general unprofessional conduct in lawyers' writing, one author noted that even errors in spelling, grammar, and typography "often occur in combination with other errors, and seem to be viewed by the courts as indicators of a lawyer's general lack of competence."
What have cases held?
Counsel's inability or refusal to present an argument well has definite consequences, no matter how well-founded the argument itself. Poor or verbose writing has led to litigation, sanctions, disciplinary actions, denial of costs, dismissal of cases (most frequently in federal courts), and general derision from the courts.
In New York alone, before the Court of Appeals imposed limits on length, the Court occasionally denied costs to the prevailing party based on the “excessive length” of the party's briefs. Horowitz Bros. & Margareten v. Margareten, 64 N.Y.2d 1008, 1010, 478 N.E.2d 194, 195 (1985); Rochester City Sch. Dist. v. Rochester Teachers Ass'n, 41 N.Y.2d 578, 584, 362 N.E.2d 977, 982 (1977). The Court also bemoaned overblown, haphazard arguments which it chalked up to “great technological advances in the methods of reproduction of the written word.” These advances are “[t]oo often. . .viewed as a license to substitute volume for logic in an apparent attempt to overwhelm the courts, as though quantity, and not quality, was the virtue to be extolled.” Slater v. Gallman, 38 N.Y.2d 1, 4–5, 339 N.E.2d 863, 864 (1975).
More recently, bad writing has led to entire lawsuits, for example O’Connor v. Oakhurst Dairy—the case where backpay for delivery drivers' overtime turned on an Oxford comma. Another example, which the Eleventh Circuit issued in 2015, is an unpublished opinion in Coyote Portable Storage v. PODS Enterprises, No. 13-14996. This case involved two royalty provisions in a series of franchise agreements, which, the Court wrote, "could be exhibit A in a law-school class on bad drafting."
Coyote Portable Storage depended on what was included in the term "net sales." The definition as written looked like this: "the total revenue…excluding sales tax and insurance as explained above, less discounts, credit memos or adjustments and bad debt expense, and monies received as part of the cross country move program…[.]"
The issue came down to whether the "and" in front of "monies received" added the monies received into the amount of total revenue itself, or into the amount excluded from the total revenue. The court had to use extrinsic evidence to determine which formulation was correct, and ultimately held that "monies received" were part of the excluded amounts.
In the end, you won't win a case based on how simply you present your argument. But does clear, succinct, direct writing help? And does it eliminate variables which can interfere with the court's perception of your case? We know from scholarship, legal outcomes, and judges' own words that it absolutely does.
Of course, that doesn't make it easy. The quote that opened this series, from legal writing authority Bryan Garner, acknowledges that "[a] writer is someone for whom writing is more difficult than others." So it may be daunting, but knowing the value of quality legal writing may console you over your multiple revisions, until your argument is as clear and direct as it can be.