New Hampshire Bar Journal
2011 Summer, Pg. 6.
What great writers can teach lawyers and judges: Precise, Concise, Simple and Clear
New Hampshire Bar JournalVolume 52, No. 2Summer 2011What great writers can teach lawyers and judges: Precise, Concise, Simple and ClearBy Douglas E. Abrams (fn*)"Writing," said lawyer Abraham Lincoln in 1859, is "the great invention of the world."(fn1) From ancient times, the writer's craft has captivated leading figures in literature, non-lawyers who are remembered most often for what they wrote, and not for what they said about how to write. Their commentary about the writing process, however, seems unsurprising because facility with the written language brought recognition in their day and later in history.
Like most other close analogies, analogies between literature and legal writing may be imperfect at their edges. "Literature is not the goal of lawyers," wrote Justice Felix Frankfurter nearly 80 years ago, "though they occasionally attain it."(fn2) "The law," said Justice Oliver Wendell Holmes even earlier, "is not the place for the artist or the poet."(fn3)
Despite some imperfections across disciplines, advice from well-known fiction and non-fiction writers can serve lawyers and judges well because law, in its essence, is a literary profession heavily dependent on the written word. There are only two types of writing - good writing and bad writing. As poet (and Massachusetts Bar member) Archibald MacLeish recognized, good legal writing is simply good writing about a legal subject.(fn4) " [L] awyers would be better off," said MacLeish, "if they stopped thinking of the language of the law as a different language and realized that the art of writing for legal purposes is in no way distinguishable from the art of writing for any other purpose."(fn5)
As Justices Frankfurter and Holmes intimated, the tone and cadence of non-lawyer writers might vary from those of professionals who write in the law. Variance aside, however, the core aim of any writer, lawyers and judges included, remains constant - to convey ideas through precise, concise, simple, and clear expression.(fn6) This article presents instruction from master non-lawyer writers about these four characteristics
1."The difference between the almost right word and right word is . . . the difference between the lightning and the lightning bug" - Mark Twain. (fn7)
When we read personal messages from acquaintances or newspaper columns by writers friendly to our point of view, tolerance may lead us to recast inartful words or sentences in our minds, tacit collaboration that may help cure imprecision. "I know what they really meant to say," we think silently to ourselves, extending a helping hand even if the words on the page did not quite say it.
Readers, however, normally do not throw lawyers and judges such lifelines. Quite the contrary. Legal writing typically faces a "hostile audience," a readership that "will do its best to find the weaknesses in the prose, even perhaps to find ways of turning the words against their intended meaning."(fn8) Judges and law clerks dissect briefs to test arguments, but only after opponents have tried to make the arguments mean something the writers did not intend. Advocates strain to distinguish language that complicates an appeal or creates a troublesome precedent later on. Parties seeking to evade contractual obligations seek loopholes left by a paragraph, a clause, or even a single word.(fn9)
The adversary system of civil and criminal justice induces lawyers and judges to strive for the right words and phrases the first time, even when extra care means reviewing drafts line-by-line. Legal writers beset later by a hostile reader's parsing cannot always rely on a second chance to achieve precision.
2."The words in prose ought to express the intended meaning, and nothing more" - Samuel Taylor Coleridge.' (fn10)
Experienced litigators seek to avoid the predicament of having to ask the court to excuse their missteps by doing them a favor. Lawyers weaken the client's cause when, for example, they miss a deadline, file the wrong paper, or overlook an argument and must summon the court's discretion for an extension of time or permission to amend.
Lawyers similarly weaken the cause when they must summon the generosity of judges or adversaries to do them a favor by acknowledging what the brief, agreement or other filing "really meant to say."
France's greatest short-story writer Guy de Maupassant was no lawyer, but his advice can remind lawyers that imprecise or otherwise inapt words can affect legal rights and obligations. "Whatever you want to say," he asserted, "there is only one word to express it, only one verb to give it movement, only one adjective to qualify it. You must search for that word, that verb, that adjective, and never be content with an approximation, never resort to tricks, even clever ones, and never have recourse to verbal sleight-of-hand to avoid a difficulty."(fn11)
Maupassant's directive sets the bar high, perhaps a bit too high because some imprecision is inescapable in language. Justice Frankfurter, a prolific writer as a Harvard law professor before joining the Supreme Court, was right that "[a] nything that is written may present a problem of meaning" because words "seldom attain more than approximate precision."(fn12)
Imprecise tools though words may be, they remain tools nonetheless, sometimes the only tools that lawyers or judges have for stating their position or explaining a decision. Achieving the greatest possible precision remains the reason for meticulous writing and careful editing. Lawyering and judging, like politics, often depend on the "art of the possible,"(fn13) even as perfection remains unattainable.(fn14)
1. "Brevity is the soul of wit," and "Men of few words are the best men" - William Shakespeare.(fn15)
Perhaps more than any other foundation for precision, preeminent writers often stress conciseness. "Less is more," said British Victorian poet and playwright Robert Browning, wasting no words.(fn16) "Brevity is in writing what charity is to all the other virtues," said British writer and cleric Sydney Smith (1771-1845). "Righteousness is worth nothing without the one, nor authorship without the other."(fn17)
Journalist and satirist Ambrose Bierce acidly defined "novel" as "[a] short story padded," and wrote what is probably history's shortest book review, only nine words: "The covers of this book are too far apart."(fn18) One of the world's greatest short-story writers, Russian Anton Chekhov, understood that "[c]onciseness is the sister of talent."(fn19)
2. "This report by its very length, defends itself against the risk of being read" - Sir Winston Churchill.(fn20)
Conciseness increases the odds that the legal writer will hold the readers' attention to the finish line. "I want the reader to turn the page and keep on turning to the end," said Pulitzer Prize winning historian Barbara W. Tuchman. ''This is accomplished only when the narrative moves steadily ahead, not when it comes to a weary standstill, overloaded with every item uncovered in the research.''(fn21)
"There is but one art - to omit!," said Scottish writer Robert Louis Stevenson, who lamented that, "O if I only knew how to omit, I would ask no other knowledge."(fn22)
Churchill, Tuchman and Stevenson accent the point that where the writer can convey the message efficiently in five pages, the writer risks losing the audience by consuming ten. Readers with a choice may not even start a lengthy document, and weary readers may throw in the towel well before the end.
Talented writers succeed best when professional modesty leads them to recognize, as historian David McCullough puts it, "how many distractions the reader has in life today, how many good reasons there are to put the book down."(fn23) Distractions in the information age can be personal or professional. Like other Americans, lawyers and judges can choose from thousands of new books each year, plus Internet sources, digital and electronic resources, blogs, and the world's newspapers and magazines available a mouse-click away. Federal and state judicial dockets have increased faster than population growth for most of the past generation or so, limiting judges' patience for overwritten submissions.(fn24) Judges may sense when they have read enough of a brief, just as counsel researching precedents may grow bored with an overwritten judicial opinion. Counsel may have no choice but to plod through an opponent's unwieldy brief or motion papers, or through unnecessarily verbose legislation or administrative regulations or private agreements, though the writer still risks obscuring important points amid the baggage.
Judges, in particular, can appreciate this short verse by Theodor Geisel ("Dr. Seuss"), who wrote for children, but often with an eye toward the adults: "[T]he writer who breeds/ more words than he needs/ is making a chore/ for the reader who reads./ That's why my belief is/ the briefer the brief is,/ the greater the sigh/ of the reader's relief is."(fn25)