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Newsletter > November 2013 > "Legal Writer"
Writing in plain English is difficult for lawyers. We started in law school being brainwashed by legalese. One problem was that we read cases by old dead judges, who learned by reading cases written by older, deader judges. All weren’t Holmes or Cardozo. Most were atrocious writers.
William Howard Taft (who believed he was a good writer!) once started a Supreme Court opinion with a 356-word sentence. In one 6th Circuit opinion, Judge Taft wrote a 10-page paragraph. It contained 1,947 words and 66 sentences.
But lawyers—and everyone else—should write in plain language.
Plain English is simply this: write in the most readable manner for your audience to understand. Make it easy on the reader. That doesn’t sound difficult, but as lawyers, we have fallen into bad habits. Foolish habits are often hard to break. At minimum, you can improve your writing by making some elementary changes:
Shorter sentence length. Sentence length is the first major element of readability. Sentences should average no more than 18 words, and never go over 35. One exception to the 35-word limit: lists, if done correctly.
Fewer passive sentences. Active voice is another element of readability. We talk in the active voice. Sometimes passive is unavoidable, but usually not. Write the court reversed the judgment, rather than the judgment was reversed. When you use passive, do so for a reason. State your bad facts in passive, your good facts in active. It will make a big difference.
Fewer verbs turned into nouns. Question words ending in -tion or –ment. Some simply cover up perfectly good verbs. How about Smith Company determined, rather than made a determination? The plan improved the roadway, rather than resulted in an improvement to the roadway? Or you moved for summary judgment, not filed a motion for summary judgment? Putting nominalizations back into verbs greatly improves your writing—saving not only words, but also awkward constructions.
Shorter paragraphs. We tend to run on and on. There is no specific rule, but don’t ever go more than a half page—the reader has to see when it’s safe to take a break.
More headings. Headings are signposts for the reader. And we should use them for the same reason we try writing shorter sentences and shorter paragraphs—to communicate quickly and clearly to our readers. Instead of Facts or Argument, write The Fire and the Aftermath or No Miranda Violation.
Easily readable typefaces. Stop using Times New Roman. It was designed for newsprint, where the ink expands. But our laser printers don’t bleed, and print TNR too small, especially the periods and commas. Always use a serif font for long text. Never use Courier unless you are attempting a joke—it’s the most unreadable typeface. Use Georgia, Palatino, or Garamond. Those are the best that we all have free on our WPs. There are many other good fonts you can buy; but don’t do that without expert help. Use a san serif font—Arial, Helvetica, or Verdana—for headings, but not text. The serifs direct the readers’ eyes rightward, the direction we read.
One word, not three. The goofy couplets, null and void, fit and proper, will and testament, sell and convey, due and payable, haven’t been necessary for almost a thousand years, but we forgot to change. Using both gives your opponent, or a court, the chance to contend that they must mean two different things. But they mean exactly the same thing—they were originally English and French versions of the same word. See Kohlbrand v. Ranieri, 823 N.E.2d 76 (2005).
No lawspeak. Hereinafter, Aforesaid, Thereinafter, Whereas, and the like are banned, unless you are trying to be funny.
These are just a few quick ways to make your writing better. You can find a more in-depth discussion of all the above, plus more, in The Legal Writer: 40 Rules for the Art of Legal Writing.
I always show the readability scores for the column. Statistics for this column: 11 words per sentence, 3% passive voice, and grade level 6.8.
Mark Painter served as a judge for exactly 30 years (Ides March 1982 to Ides March 2012), including the Ohio Court of Appeals for 14 years, 13 years on the Hamilton County Municipal Court, and the last three on the United Nations Appeals Tribunal. He now is Of Counsel with Manley Burke LPA in Cincinnati. He is the author of more than 400 nationally published decisions, 145 legal articles, and 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com, or amazon.com. A shorter version of this article appeared in the Cincinnati Bar Association Report in November 2013.