Have you ever seen the first paragraph of a Complaint filed in a lawsuit? They usually begin something like this:
COMES NOW the Plaintiff herein, John Smith, by and through his undersigned counsel and the law firm of Kirk, Spock, and McCoy, P.C., and pursuant to the Colorado Rules of Civil Procedure, for his Complaint against the Defendant herein, Mary Jones, states and alleges as follows:
That is 46 words. It is a fine example of “Legalese."
Why do so many lawyers write like this? The reasons are many. Law schools traditionally taught that law is a rigorous intellectual discipline and requires a writing style to match. Some lawyers adopt a formal tone to sound authoritative. Others use bloated language to delay a meaningful response or action. A few intentionally write to confuse or mislead. Many lawyers mistakenly believe this style impresses clients, opposing counsel, and judges. And, let’s face it, Legalese serves lawyers well because it befuddles clients and makes them more dependent on us.
The plain English movement, sometimes called the plain language movement, seeks to promote the use of plain English over Legalese in business and law. Plain English is writingthat is clear, concise, and readily understood by the target audience. The use of plain English lowers costs, improves productivity, increases credibility and reduces misunderstandings.
The fundamental purpose of any document is to convey information. Common sense suggests writing that is clear, concise, and readily understood by its target audience is a worthy goal. Unfortunately, too many lawyersfill their documents with ambiguities, double negatives, jargon, lengthy sentences, massive paragraphs, needless words, passive voice, poor sentence structure, redundancies, distracting footnotes, sexist language, undefined terms and worthless boilerplate.
There is no formula for the perfect document. There is no perfect document. But there are accepted principles of good writing. There are also many techniques certain to make any document unnecessarily long and confusing. No single article can identify all the principles of plain English, but this article attempts to summarize some of its most important tenets.
Think Before Writing. The most important principle is to think about what you want to say before you start writing. Pressed for time, too many lawyers just start typing or dictating, completely failing to think about what they want to say and how to say it in a sensible order. Often one sentence or paragraph does not logically flow from the prior one. This causes confusion and reduces trust. Equally important, by failing to really think about what they want to say lawyers may base conclusions on hidden assumptions or faulty logic.
Omit unnecessary words. As a rule, the quality of a document is inversely proportionate to its length. It took a long time to allow myself the freedom to do this, but now when I draft a Complaint, the first paragraph looks like this:
That is 2 words rather than 46. Nothing more is needed. The caption identifies the parties, their status as plaintiff or defendant, and the lawyer or firm filing the Complaint for the Plaintiff. The caption labels the document a “Complaint," so a second reference to that fact it not necessary. Reference to the Colorado Rules of Civil Procedure is also unnecessary; we assume the Plaintiff relies on those if the Plaintiff files in a Colorado court.
Prefer simple words to complex words. Which is better, prior to or before? Before is simpler – it is one word rather than two and consumes six spaces instead of eight. Avoid here-, there-, and where- words – words such as hereby, therein, and wherefore. And don’t even get me started on aforementioned or hereinafter.
Look for bloated phrases that can be condensed. For example, rather than write notwithstanding the fact that, use although.
5.Watch out for “of." One useful trick is to search for “of." It often signifies wordiness. Rather than write, The Court previously advised the Defendant of the fact that there was no factual basis for such an instruction, try: The Court previously advised the Defendant that there was no factual basis for such an instruction.
Watch out for “that" and “which." “ That" and “which" are often unnecessary. For example, the last sentence in paragraph 5 could be written: The Court previously advised the Defendant there was no factual basis for such an instruction.
Use short sentences and paragraphs. Accepted readability formulas such as the Flesch Reading Ease Scale rely heavily on sentence and paragraph length. Try to keep your average sentence length to 20 or 25 words. A long sentence usually indicates you are trying to say too many things at once. The same applies to paragraphs; try to keep the average number of sentences in a paragraph to five or six. Microsoft Word’s grammar check function offers the ability analyze the readability of any document. It tells you the number of words in the document, the number of characters, the number of paragraphs, and the number of sentences. It provides the average sentences per paragraph, the average words per sentence, and the average number of character per word. It also provides the percentage of sentences that employ passive voice and tells you how the document scores on the Flesch Reading Ease Scale and the Flesch-Kincaid Grade Level Scale. There are also similar open source programs such as Abiword.
Prefer active voice to passive voice. In an active voice construction, the subject of the sentence does something. In a passive voice construction, something is done to the subject. The Court denied the Motion is active voice. The Motion was denied by the Court is passive voice. Active voice usually requires fewer words and better reflects the chronology of events. If you have trouble spotting examples of passive voice, look for be-verbs (is, are was or were) followed by a verb ending in –ed. For instance, The Motion was denied.
Avoid multiple negatives. For example, instead of No more than one officer may be in the courtroom as an advisory witness, write, Only one officer may be in the courtroom as an advisory witness.
Use verbs, not nominalization. A verb that has been converted to a noun is called a “nominalization." For instance, “Please state why you object," becomes “Please make a statement as to why you are making an objection."
Avoid redundant legal phrases. Phrase such as null and void or rest, residue, and remainder are unnecessary. Many of these traditional phrases are remnants from a time when legal documents needed to contain Latin, English, and French words to satisfy all parties to a transaction.
Avoid gaps between subject, verb and object. Most sentences should follow the normal English word order: subject, verb, and then object (if any). Consider this example from Richard Wydick’s Plain English for Lawyers:
The proposed statute gives to any person who suffers financial injury by reason of discrimination based on race, religion, sex, or physical handicap a cause of action for treble damages.
There is a 21-word gap between the verb (gives) and the object (cause of action). One remedy is to make two sentences. Another is to move the intervening words to the end of the sentence:
The proposed statute gives a cause of action for treble damages to any person who suffers financial injury because of discrimination based on race, religion, sex, or physical handicap.
Use personal pronouns, especially in consumer documents. In consumer documents, consider making the consumer “you" and the organization “we." That makes the document easier to read than one that uses “customer" and “company."
Refer to people and companies by name. For example, rather than using “Lessor" and “Lessee," use “Smith" for the “Lessor" and “Jones" in place of “Lessee."
When necessary, make a list. Sometimes the best way to present a set of conditions, or exceptions, or closely related ideas is with an introductory clause followed by a list. (Reed Dickerson, The Fundamentals of Legal Drafting 115-24 (2nd ed. Little, Brown 1986)