Part IV: Use plain language

Plain language puts the message before anything else. It's another strategy to keep the focus off the writer and on the point the writer wants to make. The US federal government describes it like this:

Plain language (also called Plain English) is communication your audience can understand the first time they read or hear it.... No one technique defines plain language. Rather, plain language is defined by results—it is easy to read, understand, and use.

 

In practice, plain language might look like this:

  • Before: It is imperative that persons being transported in a motor vehicle utilize the vehicle's safety restraints, subject to the risk of severe bodily harm or injury, up to and including death.

  • After: When you're in a car you should wear a seatbelt. Not wearing a seatbelt is dangerous and you could die.

 

  • Before: During trial, Plaintiff-respondent admitted that both at the time the parties entered the 2007 Lease, providing additional basement space to Defendant-appellant, and continuously thereafter through and including September 2008 when Plaintiff-respondent admitted changing the locks and thereby evicting Defendant-appellant from the premises, the basement space that was the subject of the 2007 Lease had already been leased to another tenant in the building, namely a real estate office.

  • After: The landlord admitted it had leased the additional basement space to a different company before leasing it to the tenant. This was true when the landlord first signed the agreement to lease the additional space to the tenant in 2007 and it remained true for the lease's duration, until the landlord changed the locks in September 2008 and constructively evicted the tenant from the premises. 

 

  • Before: ORDERED that the order entered February 24, 2016, is modified, on the law, by deleting the provision thereof, upon renewal, adhering to so much of the determination in the order dated August 3, 2015, as denied those branches of the motion of the defendant Richard D. Hong which were for summary judgment dismissing the first and second causes of action insofar as asserted against that defendant, and substituting therefor a provision, upon renewal, vacating that portion of the order dated August 3, 2015, and thereupon granting those branches of the motion.

  • After: The August 3, 2015, order in this case denied defendant Richard D. Hong's motion for summary judgment on the first and second causes of action. The motion was renewed and the trial court affirmed the denial in an order entered February 24, 2016. We now vacate the part of the February 24 order that affirmed denial of summary judgement, and grant Hong's motion on these causes of action.

 

  • Modern [1946] English: Objective considerations of contemporary phenomena compel the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account.

  • Plain-language original: I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all. (George Orwell: ‘Politics and the English Language'. First published: Horizon. — GB, London. — April 1946.)

After slogging through the oppressive legal- and bureaucratese in the first versions, the crisp examples in the second are the written version of emerging from a humid steam room into a cold plunge pool. Here's a final example, from the world's best waiver and disclaimer:

But even though you might get hurt or lost, you’re agreeing to all this crap because you want to run this race. You are therefore releasing and discharging all race officials, volunteers, sponsors and municipalities, as well as the rocks, roots, bugs, tree limbs, and other stuff, dead or alive, gnarly or not, that might poke an eye out or otherwise hurt you.  Because you know that trail running is a high-risk activity.

 

So how can you use plain language to simplify and clarify your own writing?

For lawyers who are comfortable with traditional bloated legal writing, simplifying words and arguments in a shift to plain language feels strange and almost condescending. But it doesn't come across that way. With practice, plain language results in clarity and quick understanding. In the example about the seatbelts above, which version is more likely for the reader to remember?

Several guides and checklists make plain-language strategies more accessible. For example, Appendix C of the Pennsylvania Plain Language Consumer Contract Act sets out principles mirrored by authors such as Strunk & White and Richard C. Wydick:

  IV. GENERAL PRACTICE POINTERS

 A. Use short words, short sentences and short paragraphs.

 B. Use active voice.

 C. Eliminate legalese such as:  HEREBY, THEREOF, HERETOFORE, THEREAFTER.

 D. Use familiar vocabulary.

 E. Rephrase legal jargon into simple language.

 F. Use names or pronouns consistently.

G. Define words by using commonly understood meanings.

George Orwell recommends the following straightforward list of rules: 

i. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

ii. Never use a long word where a short one will do.

iii. If it is possible to cut a word out, always cut it out.

iv. Never use the passive where you can use the active.

v. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

vi. Break any of these rules sooner than say anything outright barbarous.

And the Center for Plain Language and Plain Language Network offer two more checklists to assess and improve your writing.

As helpful as checklists and other editing devices are, they require a lot of investment once the drafting is over. There's nothing wrong with that; after all, drafting is only a small portion of the final product. But another useful strategy, during the writing process itself, ensures that your legal writing audience will quickly grasp even convoluted arguments: Pretend you're writing to a bright 11th-grader, and your writing tends to fall into place.

Part III: Don't tell the reader what to think or feel

To achieve the Remaining Invisible goal, the writer has to remove her mental and emotional processes from her writing. Judges know when lawyers are making a play for their emotions, so instead of proclaiming indignation ("opposing counsel's conduct represents an affront to the legal profession"), it's better to state the facts which provoked it ("out of twelve pages of argument, counsel devotes three pages to precedent and the remainder to questioning plaintiff's parentage"). Instead of telling the reader what to think, it's better - and more convincing - to set out the facts and law in a way that leads him to the desired conclusion on his own. A well-presented argument doesn't require unnecessary, transparent efforts to convince (e.g. "clearly," "obviously," "blatant," "utter," etc.). A "clear" and "obvious" thing will speak for itself.

But sometimes lawyers have to make arguments that don't stand a chance, and write with the hope that calling their conclusions "obvious" lends them a cloak of inevitability that covers their flaws. Unfortunately, it doesn't. This strategy can't compensate for bad facts or law, and works best as a giant flashing arrow drawing the reader's attention to an insubstantial claim. And, like George Costanza trying to convince a woman she can't get him out of her head, it's simply magical thinking done badly.

For example, the first of these sentences draws a conclusion for the reader, but the second depends on the facts which lead the reader to decide for himself:

  • His conduct was clearly offensive.
  • Several neighbors denounced his conduct at four consecutive community board meetings.

Likewise, adverbs, adjectives, and qualifiers (such as "a fairly significant holding" - is it significant or not?) draw attention to the writer's unfolding thought process instead of the facts and law. Compare these versions of a quote from the late Justice Scalia, and note how various hedging techniques weaken the first, doctored version, compared to the second, original quote:

  • “I would argue that adverbs are mostly a cop-out. They’re almost a way for you to qualify, and if you don’t use them, it really forces you to think through the final conclusion of your sentence. And clearly, it forces you to confront the significance of your word choice, in other words, the importance of your diction.”
  • “I think adverbs are a cop-out. They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction.”

True, there's no need to avoid these formulations in a initial draft. Embrace them at first, if you'd like - it's important to write without interrupting the flow - but don't let them slip past your editing. Here's the Bryan Garner-recommended method for condensing diluted prose: Where you encounter a qualifying word, delete it, and if it changes the meaning of your sentence, try to express your meaning with a more precise noun or verb before resorting to your qualifier.

Part II - Achieving Your Invisibility Superpower

In the last post we identified our goal of keeping ourselves as writers in the background. This is hard for anyone, but maybe even more so for lawyers - we of no small egos - than many other writers. Here's one strategy that helps: Break things down. Sticking to, or at least aspiring to, a particular structure requires thoughtful organization, which lends itself to clear explanation.

One classic method, widely preached by Bryan Garner, is syllogism - a major premise, followed by a minor premise, then a conclusion. You've probably seen this classic example:

Major premise: All men are mortal

Minor premise: Socrates is a man

Conclusion: Socrates is mortal.

In other words, your major premise is your rule of law; your minor premise, a short description of the facts; your conclusion explains the effect of the major premise on the minor, or the overall outcome of the situation.

Even though many lawyers have already encountered another structure - the (F)IRAC method - in law school, often one wouldn't know it to read their papers, so a refresher can be helpful.

(Facts - if not established elsewhere already)

Issue - the question you're asking the court to decide

Rule - governing statute or premise

Application - how the rule applies to the facts of your case

Conclusion - how the application of the rule controls the issue

A twist on the IRAC formula is called CREAC (but don't ask how to pronounce it):

Conclusion - how the application of the rule controls the issue

Rule - governing statute or premise

Explanation - the rule's logic/rationale/intent

Application - how the rule applies to the facts of your case

Conclusion

This method works well for policy-based arguments, which rely on the reasoning (legislative intent, for example) behind a given rule, and explain how an outcome adverse to your client's interest would violate that intention. Further, there's no guarantee in any writing that the judge will make it to the end of your point section or the senior partner will reach the end of your memo, so it's generally wise to lead with your conclusion regardless of your chosen structure.

These strategies can organize any level of a written product - the brief as a whole, and each point heading, sub-point, and paragraph. Just as in most other areas of law, nothing here is subject to rote application and judgment is always required; for example, simply because the CREAC structure doesn't specifically provide for facts doesn't mean one should exclude them.

Any of these organizational structures, or a similar one, makes your logic explicit. Explaining your reasoning step by step guides your readers to the destination you want them to reach, and keeps the focus on your argument, not you.

How to write well - Part I

"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.

Does legal writing matter?

Last week I kept asking myself, Why bother?

Not in a nihilistic way - it arose while I was preparing a lecture on legal writing for a local bar association. (Which by the way went swimmingly and I dearly hope it'll be the first of many. Stay tuned.)

Legal writing in law school was a hard sell. It always seemed too basic to require much practice and every exercise was a chore I met with derision. So in case my bar association audience was in the same place, I wanted to justify its expenditure of time and energy.

This is where I wanted to cite statistics analyzing the effectiveness of quality legal writing versus abysmally edited, poorly articulated, unpunctuated, slapdash drivel that passes for "written argument" in so much of the profession. But there don't seem to be any, and for obvious reasons - what self-respecting judge will admit she ignored an argument's substance in favor of its presentation? Anyway, how would you even quantify the variables, and what's your thesis - that the more passive-voice sentences in your brief, the slimmer its chance of success? (OK so that's maybe not bad. File it in lists of projects to undertake before retirement. Or after.)

At any rate, we don't have much to work with. But what is available - the subjective assessments of the people you need to convince, i.e. the judges deciding your case - is incredibly valuable. And judges are clear that if they want one thing, it's an easier job.

This is true of any reader - take, for example, Williams & Bizup's guide Style: The Basics of Clarity and Grace: "Most of us do work hard to understand [difficult writing] - at least until we decide that a writer failed to work equally hard to help us understand or, worse, deliberately made our reading more difficult than it has to be. Once we decide that a writer is careless, lazy, or self-indulgent - well, our days are too few to spend them on those indifferent to our needs."

Is this the attitude you want to elicit in the person deciding your client's case? 

From the judicial perspective, take a classic lecture called The Wrong Stuff, in which Ninth Circuit Judge Alex Kozinski instructed his audience in how to submit a losing brief. To achieve this he recommended long briefs full of things like convoluted sentences, ad hominem attacks (never persuasive), and buried arguments. If, after deploying these strategies, you still manage to win your case, he says "you ought to give up practicing law and start playing the lottery."

Not once have I seen a judge celebrate legalese, or legal style generally. Instead, USDJ Lynn N. Hughes's sentiment is representative: "The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty."

But lawyers can counter this. According to Judge E. Barrett Prettyman, our "greatest weapon is clarity, and its whetstone is succinctness."

It's impossible to know the impact of, for example, your direct and persuasive point headings on the effectiveness of your argument. But what we do know is that these - along with accurate citations, clear arguments, and steadfastly correct usage (no "lavatories of innovation and democracy," thank you, Gov. Rick Perry) - make a reader's job easier and contribute to the court's impression of you as a credible and trustworthy advocate.

Regardless of whether you do, judges care.

In which a swimmer's affidavit could have saved summary judgment

A part-time lifeguard at a state beach was prevented from taking the qualifying yearly swim test because he wanted to wear jammers, not a Speedo or other type of swimsuit issued by the State as part of the lifeguard uniform. The lifeguard sued for age discrimination - he's also a partner in a law firm - claiming that jammers are "a type of swimsuit commonly worn by older individuals" (sorry male triathletes!).

The State won summary judgment, the lifeguard appealed, and the Appellate Division, Second Department, reversed the dismissal of the complaint and reinstated the case. The court held that the State "failed to eliminate all triable issues of fact as to whether it had legitimate, nondiscriminatory reasons for refusing to allow the plaintiff to take the test for new hires in a 'jammer' swimsuit," which should have been the easiest thing in the world.

Writing as a swimmer, motions and appellate lawyer (albeit one unfamiliar with the record), and erstwhile qualifier for the State's lifeguard program, this ruling is almost painful. Jammers are frequently banned in open-water swim races, due to the potential for competitive advantage. It's impossible that the State couldn't have found an expert to establish this point - this article, for example, interviews three manufacturers on the issue. And how is it illegitimate or discriminatory to insist that a prospective lifeguard take the test in the uniform he'll be wearing when he's swimming toward a drowning person?

I'm guessing neither attorney on the State's brief is a swimmer. It's a helpful illustration of why lawyers need to be exhaustively familiar with our clients' work.

 

Is inquiring into jury bias constitutional?

With a plaintiff-side background, I've definitely heard the clichés about greedy litigants faking injuries for the sake of a windfall, and although jurors are meant to give a fair hearing and determine facts based on evidence, bias often deprives one side or the other of due consideration.  Per SCOTUSblog, next term the Supreme Court will consider the case of Pena-Rodriguez v. Colorado and address whether parties can have both an impartial jury and a jury entitled to confidential deliberations.

Apart from the obvious tension between confidentiality and prying into an internal process to assess impartiality, there's also the problem that confidentiality could be necessary to allow impartiality to prevail over bias.  The issue in Pena-Rodriguez, for instance, arose from racist comments made by one juror, in a criminal case which resulted in a guilty verdict for a Mexican defendant.  If the racist juror believed that other jurors would tell the defense attorneys about his comments, it's likely he wouldn't have made the comments to begin with.  This would have kept his bias completely under wraps, never revealing to the court that his vote might have been based on pure prejudice, and never revealing to his fellow jurors that he had motivations besides what the evidence showed, which could undermine the influence of his vote.  Concerns that deliberations were not confidential would interfere with the ability to bring the absence of impartiality into the light.

Still, even the possibility that one's biased statements would be disclosed could render a juror less likely to make the statements to begin with, depriving his or her fellow jurors of the opportunity to account for those statements.  If bias isn't known and accounted for, no decision can ever be impartial.

And what about the lawyers' job?  From an appellate perspective, what's really galling is that the judge apparently advised defense attorneys that past jurors had expressed dislike of individuals who entered the U.S. illegally, but defense lawyers did not screen potential jurors for this possibility.  Is there any effect if the lawyers don't inquire into a specific possible bias during jury selection?  Who knows if this will play a large role in the Court's eventual decision - at any rate, no one ever lost a case from preserving issues.

Maybe this case will result in a situation similar to jury nullification, which juries can invoke but the court isn't required to instruct them on it.  At any rate, it could provide a basis for finding that plenty of parties did not receive the fair hearing they're entitled to, and even more so if the lawyers lay a foundation for that claim.

The First Amendment, Across the Classiness Spectrum

Failure to acknowledge awkwardness just increases it, so before continuing on to a case dealing not only with a celebrity sex "scandal" but also a tape of the act giving rise to said scandal, let's take a moment to allow that yes, this is some slightly embarrassing subject matter for a long list of sundry reasons.

But regardless of context, if more people are becoming aware of the nuances of First Amendment law that can only be a good thing.

Which is why I was pleased to hear this Very Special Podcast edition of On the Media, featuring the host's conversation with Heather Dietrick, general counsel of Gawker Media which published an excerpt of this tape online. My favorite moment of the discussion was when the host (probably serving as surrogate for at least 85% of his audience), noted his own discomfiture and asked Ms. Dietrick what the broader importance of this issue could possibly be. Her answer - which seemed obvious and I truly hope that's not a function of being a lawyer - was that, specifics aside, these are the kind of facts that test the limit of the First Amendment. This is spot-on. And even before these limits are developed on appeal, it's still important to have questions of who's a "public figure" and what falls within the scope of "newsworthy" up for public debate.

The First Amendment has been especially relevant to my work lately, in drafting a motion to the Appellate Division in a case involving free speech along with free expression of religion and freedom of assembly (in addition to a plethora of non-constitutional issues), which I wrapped up and filed earlier this week. If we win, then my clients have the law on their side against court interference with their religious practices, and if we lose, it means we have a chance to try again at the statewide level. True, it's low-profile and has very different issues from certain more notorious cases, but fortunately it also involves facts which are much less salacious, and for that I'm grateful. 

 

Beyond Privacy v. Security

The privacy-versus-security question is pressing enough in its own right, but Apple's liberty argument in its Motion to Vacate the order for it to develop new software has implications that are just as heavy. In other words, the issue is whether a government can require a private company to develop a new product which the company does not want to develop. Can it require the company to expend its own resources in acting against its own interest? Can it compel speech on the company's part and deprive the company of a liberty interest without due process, all for the sake of an investigation which, the government acknowledges, is a fishing expedition?

If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone's microphone and camera to record sound and video.  And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties [sic] to do its bidding in the name of law enforcement.  For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things "necessary" to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code into its auto-update process that makes it easier for the government to conduct court-ordered surveillance.

Apple Motion, 2/25/16, at 25-26.

If corporations are people (my friends), if the government prevails here then how is any individual's skill set safe from being drafted into service anytime it's convenient for government ends?

Apple notes in its conclusion that "examples abound of society opting not to pay the price for increased and more efficient enforcement of criminal laws" (Id. at 35), and points to the constitutionally-protected rights against self-incrimination and warrantless searches. It's frustrating that they buried this point, both in terms of writing style (never raise new arguments in the conclusion) and from an advocacy perspective, but the point still illustrates that freedom from government intrusion is absolutely necessary to U.S. national identity. Given that the government's initial request for an order compelling Apple to create this product was made ex parte, this is Apple's first chance to put its arguments before the court, and its first chance to force an answer from the government.

Who knows if this is another hard case making bad law, or if in time we'll look to it as a reliable precedent?