Revisiting Legal Writing
Great writing takes a lot of time and effort. Along with legal research, legal writing is part of the bread and butter of every lawyer and law practice.
In law school, law students do a lot of reading. They read text books, statutes, cases, opinions—most of which use antiquated language. At some point, law students adopt what they consider to be the legal language as how they must write. New lawyers then begin writing in that style, and at some point, face the reality that they need to go back to writing the way a human would write.
The criteria for good writing changes from “whether the professor will give points on the exam” to “would the client understand it or throw it away.”
The culprit? Legalese.
Legalese has been described as “the specialized language of the legal profession” and “language containing an excessive amount of legal terminology or of legal jargon.” Some have even just called it lazy writing.
Lazy writing isn’t the most accurate definition. Often, lawyers write in legalese…well…to sound like lawyers. The irony here is that the best lawyers are actually trying to avoid sounding too “lawyery.”
Legalese is what law students’ brains have been taught to do, rather than something they choose to do. Putting in the time to deconstruct the training from law school to “stop sounding like a lawyer” takes some serious reframing.
Using legalese often gives readers (clients) the impression that the writer is overly pompous. In addition to the negative impression, it does not communicate the message clearly (too much technical language without a solid explanation or answer). A lawyer’s hard work might not achieve its intended purpose if the reader can’t follow the lawyer’s reasoning (no client wants to look up “otiose” or “prima facie” when they want a quick answer). No one likes to feel confused, stupid, or angry when they want to hear “yes” or “no.”
Here are a few simple steps you can take to avoid overcomplicating your writing:
Don’t write what you wouldn’t say. If the written material, in a spoken setting, wouldn’t call for you saying “aforementioned” or “disambiguate,” then don’t write it. This applies to latin phrases as well.
Know your audience! Write clearly, correctly, and succinctly for your audience. Your goal is for them to understand what you are writing the first time they read it. Don’t make them do any extra homework.
Brevity is king. Use shorter sentences and paragraphs over longer ones. Separate concepts into different sentences.
Perform a “legalese check.” When you review your work, don’t just look for typos, but also review for the overall impact.