Legal Writing: a Contract Between the Reader and Writer
| Jurisdiction | California,United States |
| Citation | Vol. 11 No. 2010 Pg. 08 |
| Pages | 08 |
| Publication year | 2010 |
CBJ - November 2010 #08. Legal writing: A contract between the reader and writer
November 2010
U.S. District Court, Central District of California
During my 35 years as a lawyer and judge, the information and instruction I've received from informative articles in the California Bar Journal have been a blessing.Perhaps the biggest blessing has come from occasional instruction on effective legal writing. The rules promoting clarity and conciseness have not changed over the years, but unfortunately, neither has the consistent core of ineffective writers ignoring those rules. So, standing on the shoulders of previous prophets, I repeat here the gospel of good legal writing from my perspective after 35 years of writing and reading too many unfocused words.
But before reciting the rules, I pause to note that people may write differently because they read and process information differently, and their writing reflects how they read and process. Thus, there may be a personal bias in what follows. Still, the key rules here are found in most other pieces on good writing, and these rules promote clarity for most people.
Writing rules and contracts
To begin, it's helpful for a piece of legal writing to have a common theme - a general tapestry with each thread woven into the whole. A theme helps focus thoughts on the important forest, rather than the distracting trees, and as it shortens writings, it saves trees from the paper mills. The theme of this article is that the author of a legal writing has a contract with the reader. If the reader commits to giving the legal writer time to read the piece, the writer commits to value that time by using it wisely and presenting thoughts that flow clearly and concisely. Though I've not seen this theme presented before, on this theme can hang all the writing laws from previous prophets of righteous legal writing.
The core of this contract between the writer and reader is that the reader should never have to reread a passage to understand it properly. A writing requiring rereads wastes the reader's time, and the longer the passage needing to be reread, the greater the waste. I hope this article doesn't breach my end of the bargain with you.
Games for good writing
A good way to achieve concise cogency is to think of your reader as an unsophisticated person sitting at the breakfast table trying to understand your writing. True, many issues in our complex technical world can't be easily explained to all. But this is still a helpful game.
Even better, as you imagine this unsophisticated person sitting at the breakfast table trying to understand your writing, imagine further that you're talking to this person. Don't use words that you would not use in regular conversations. Writing with a conversational tone increases accessibility. Winston Churchill, a Nobel Laureate for his writing and one of the greatest oral and written communicators in the English language, said, "Let us not shrink from using short expressive phrases, even if it is conversational."
Further, since contractions are part of conversational communications, consider using them to make your writing more accessible. True, you must always consider the risk of offending the erudite, but you must remember that many great legal thinkers and writers like Chief Judge Alex Kozinski use plain English and contractions.
Writing for all the various sorts and conditions of folks makes not only better writers, but also better trial lawyers, since people usually talk like they write, and juries appreciate straightforward language. It also generally improves the image of lawyers, who are often attacked for being stuffy, pretentious and pompous.
Another helpful game is to imagine that, as part of the writer-reader contract, the reader gets to charge the writer for each word read. I've played a related helpful game with colleagues toiling with me on legal writing: if a word can be removed without changing the effectiveness of the writing, the writer pays the reader a dollar. A few rounds of this game sensitize the writer to...
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