As the myth goes, the legal profession’s tendency toward verbosity originated from a period in English history when legal drafters were paid by the word.
In contrast to the earlier practice of payment by folio (large sheets of paper), which led to writers using needlessly large handwriting to maximize their income, in the 1600s the English Parliament considered payment by word to be more reasonable. That’s presumably how it became standard practice.
Sensing an opportunity, Tudor lawyers wrote in increasingly obtuse language. Hence, several words in place of one (e.g. using “in the event of” whereas “if” would be more succinct) and the proliferation of writing in entirely redundant triplicates (“give, devise, and bequeath,” and so on).
True or not, doubtless the legal profession has long had a reputation for wordiness. It has, for almost as long, also had a campaign for plain English. For example, Thomas Jefferson wrote in 1817: “we lawyers say everything two or three times so that nobody but we of the craft can untwist the diction, and find out what it means…”.
Arguably, in today’s high-tech world, where legal documents are increasingly likely to be read on-screen rather than on the printed page, brevity and clarity have never been more important. What, though, are the actual advantages of writing in plain English? In other words, why bother?
Is it necessary to write in “legalese?”
“Hang on,” you may be thinking, “aren’t most legal terms of art shorthand that make it easier for lawyers to communicate with each other?”
The answer is: only sometimes. Writing in the Michigan Bar Journal, legal publisher Mark Mathewson explains:
“Legalese may indeed be a necessary evil, depending on what you mean by ‘necessary.’ If you mean that legalese is necessary because your boss will berate you… you may be right. But is legalese necessary for purposes other than reinforcing the prejudices, and quieting the fears of your ‘superiors?’ The answer is yes (rarely) and no (usually).”
Mathewson agrees with legal writing guru Bryan Garner, who argues that choosing a specialized legal phrase rarely makes writing more precise. Only a small handful of non-simplifiable terms of art (like habeas corpus) are genuinely necessary, Garner says.
In other words, when legal jargon has an everyday English alternative, the latter ought to always be preferred.
What are the benefits of writing in plain English?
Don’t all professions have their jargon, though? Doctors, scientists, engineers, and the like often speak in their own language. Indeed, using specialized words only comprehensible to others of the same training is a way of reinforcing one’s identity as a doctor, scientist, engineer, or whatever.
When it comes to legal professionals, however, there are significant benefits to writing in plain English.
Plain English improves clarity
Legal writers’ fondness for specialized, even archaic, language is often to the detriment of clear and concise communication. Consider this example from Garner’s “Legal Writing in Plain English”:
The Undersigned hereby extends said lien on said property until said indebtedness and Loan Agreement/Note as so modified and extended has been fully paid, and agrees such modification shall in no manner affect or impair said Loan Agreement/Note or the lien securing same and that said lien shall not in any manner be waived, the purpose of this instrument bring simply to extend or modify the time or manner of payment of said Loan Agreement/Note and indebtedness and to carry forward the lien securing same, which is hereby acknowledged by the Undersigned to be valid and subsisting.
Confused? Most readers would be. However, with a few simple edits (and the addition of a name), it’s possible to maintain the same legal meaning but in a way that is clear to almost all readers:
Williams extends the lien until the Note, as modified, has been fully paid. The modification does not affect any other terms of the Note or the lien, both of which remain in force.
The process of carefully trying to express ideas clearly almost always leads to an improvement in the substantive content of the document.
Plain English benefits clients
The law school at Penn State maintains a summary of cases in which the judge has admonished an attorney for poor writing or drafting, leading to delays while re-writes are prepared or to the complete loss of the case.
For example, in Kuzmin v. Thermaflo, Inc., (E.D. Tex. May 20, 2009), a judge complained that a brief was poorly formatted and riddled with spelling errors. The judge concluded that “by submitting a poorly written brief, the attorney fails the Court as well as the client.” Sometimes, the court goes further. In Ramos-Barrientos v. Bland (S.D. Ga., Feb 19, 2008) a federal judge wrote, “enough paragraphs are needlessly verbose, tangled, fractured, and repetitive as to require corrective action.”
In these extreme cases, a lot of time was wasted, and cases were jeopardized. However, in his book “Writing for Dollars, Writing to Please,” Joseph Kimble detailed several studies that demonstrate how obscure and unclear legal writing regularly leads to unnecessary lost time through longer meetings, additional phone calls, and hours spent explaining what ought to be clear.
Because clients like plain English, it benefits you
Infuriatingly complex writing that ‘s hard — almost painful — to understand is one reason that trust in lawyers among the general public has been declining. Yet, the documents that legal professionals write affect people’s lives in important, sometimes even profound, ways.
Writing concise and easy-to-read legal documents presents a good impression of you and your firm. The public like plain English and happy customers are more likely to give you repeat business. Clients that have had a good experience and have felt that they understand what has been happening at every stage are also more likely to give you a recommendation and to make referrals.
More broadly, by demurring from the hyper-formal and legalese-heavy language that so turns off the public, you’ll be helping to protect the reputation of the legal profession more generally.