Legal Writing: Its Nature, Limits, and Dangers - Douglas Litowitz

• Citation: Vol. 49 No. 3
• Publication year: 1998

Legal Writing: Its Nature, Limits, and Dangersby Douglas Litowitz*

Lawyers have a unique and highly technical manner of writing, one that differs significantly from standard English. Legal education involves an indoctrination into this new discourse, a process that ends when one awakens to find oneself writing in a manner that once seemed impossibly obscure. Of course, the mastery of legal language reflects a paradigm shift in thought, sometimes called "learning to think like a lawyer" or "seeing things from a legal perspective." The conceptual scheme and language of the law are so different from the ordinary way of thinking that Lord Coke was perhaps correct when he characterized the law as "artificial reason."¹

Law students typically undergo a conversion experience during the first year of law school, when they begin to see the world in terms of property, contracts, torts, and remedies. For the great majority of students, this conversion is irreversible; once taught to think like a lawyer, the dye is cast and it is only a matter of time until the existing legal framework seems natural and inevitable. Although this conversion process lasts for months, most lawyers forget or repress their initial struggle to master legal concepts and to express themselves in legal terminology. Once acquired, the technical language of the law becomes a pair of glasses that one looks through but not at, a mere tool that does not merit contemplation in its own right. From day-to-day, lawyers are immersed in a specialized manner of writing to the point where they no longer pay attention to it, much as a person can wear a suit and tie for years without reflecting on it. Perhaps this helps to explain why legal scholars have failed to treat legal writing as a genre worthy of legal scholarship in its own right,² and why law schools generally treat legal writing as a skills course instead of a substantive course.

When we temporarily suspend our use of legal writing as a mechanism for achieving particular results within the legal system and instead hold it up for inspection in its own right, serious and troubling questions arise.³ For one thing, we can rightfully wonder about the psychological effect on lawyers of producing this artificial language all day, every day. We also need to ask whether such tortured prose is really integral for the existence of law as a social institution, or whether we could plausibly replace it with a simpler, less formal manner of writing (or perhaps eliminate legal writing as a unique genre altogether). Finally, we need to explore the social and political consequences of propagating a discourse that is too complicated for ordinary citizens to grasp. With regard to the manner of thinking, speaking, and writing that has become second nature to us, we need to ask, "What are its limits, its dangers, its potential?"

In this Article, I assert that a unique and formal style of writing is necessary and inevitable, because legal writing functions as the medium for the expression of higher-order principles that bind and shape our interaction with other people and with the physical world. Through legal writing we bring one possible version of the world into existence, which means that legal discourse constitutes a "way of orwldmaking,"⁴ a Weltanschauung,⁵ or "conceptual scheme" by virtue of mapping out the world in a restricted and specialized manner. Because of the heavy burden carried by legal language—the fact that it is literally a matter of life and death, not to mention money—it must be somewhat abstract, detailed, and distanced. Having said this, I also want to point out that the classic, accepted style of legal writing carries dangers that need to be articulated if we are to adopt a critical posture toward our practices.

I begin this Article in Part I by distinguishing legal writing from legalese, so that we may appropriately focus on the former. In Part II, I argue that a unique legal language is necessary and inevitable, but also dangerous in certain respects. Finally, in Part III, I articulate four dangers of legal writing: First, it distorts, obscures, and legitimates unequal power relations; second, it narrows the range of thought and emotion; third, it emphasizes formality at the expense of substance; and fourth, it becomes hyper-technical and difficult to navigate by nonlawyers, thereby distancing and alienating them from the legal system.

I. Legal Writing versus Legalese

Law is a profession of language and writing; lawyers get paid for drafting persuasive documents and speaking for clients. Lawyers have no choice but to write, and they must write in a certain style for their writing to qualify as a distinctly legal work product. To write in this way is not optional, but is rather a condition for the possibility of practicing law.

Legal scholars have long recognized the disjunction between legal language and common parlance. In a careful study, David Mellinkoff noted nine major ways that legal language differs from standard English:

(1) Frequent use of common words with uncommon meanings; (2) Frequent use of Old English and Middle English words once in common use, but not now; (3) Frequent use of Latin words and phrases; (4) Use of Old French and Anglo-Norman words which have not been taken into the general vocabulary; (5) Use of terms of art; (6) Use of argot; (7) Frequent use of formal words; (8) Deliberate use of words and expressions with flexible meanings; and (9) Attempts at extreme precision of expression.⁶

Apart from the restriction imposed by using only approved words from a limited lexicon, lawyers are further constrained as a matter of syntax and form. For example, a complaint must be divided into counts, numbered paragraphs, and prayers for relief; a contract must contain a caption, recitals, agreements, and a signature page; a client letter must delineate the specific issue researched by the lawyer and then provide a carefully guarded opinion. In each case, the attorney works from prior forms, and while this provides a measure of security and efficiency, it also confirms and legitimates the use of traditional instruments and styles of writing.

Because of the mandatory nature of legal writing (the fact that an attorney must write in this way to practice), lawyers inevitably succumb to tradition, because their language is quite literally a bricolage of terminology and doctrines from earlier times.⁷ When practicing law, it is almost as if language is speaking the person instead of the person making use of the language.⁸ Lawyers take the language as they find it, and more to the point, they perpetuate this language regardless of their personal feelings about it. This linguistic determination of the free subject was captured in literary critic Mikhail Bakhtin's statement that "words have 'conditions attached to them': it is not strictly speaking, / who speak; I perhaps would speak quite differently."⁹

The first step toward understanding legal writing is to distinguish it from legalese, since the two are often confused, especially by the general public. In looking closely at the legal writing that lawyers produce from day-to-day (such as pleadings, briefs, opinion letters, contracts, leases, securities offerings), it strikes me that we encounter two distinct types of legal writing: (i) legal writing that is highly technical but nevertheless necessary and appropriate to express a specific legal relation, and (ii) legal writing that is verbose and gratuitously technical, serving no purpose other than to mystify and shroud the subject matter in a veil of overblown prose. We can understand the former as legal writing and the latter as legalese. I want to focus initially on legalese before turning to legal writing.

The term legalese is generally employed in a pejorative sense to denote verbose technical jargon and Latin phrases that obscure an otherwise straightforward text. Properly understood, legalese denotes a degenerate form of legal writing, where a document becomes distorted with formalities to the point that its message is no longer clear. This type of writing has raised suspicions for centuries. For example, Thomas Jefferson took a jab at legalese when he drafted a clearly written bill and sent it to a friend with the following instructions:

I should apologize, perhaps, for the style of this bill . . . . You, however, can easily correct this bill to the taste of my brother lawyers by making every other word a "said" or "aforesaid," and saying everything over two or three times, so that nobody but we of the craft can untwist the diction and find out what it means; and that, too, not so plainly but that we may conscientiously divide one half on each side.¹⁰

For Jefferson, legalese was problematic because it did not add anything to the underlying point of a text, but instead choked a simple message with artificial terms and repeated phrases until the original meaning was lost. This understanding of the term neatly complies with a typical dictionary definition of legalese: "Language containing an excessive amount of legal terminology or of legal jargon."¹¹

The central problem of legalese is that it constitutes a secret coding and phraseology that only lawyers can sort out. Legalese can convert a simple phrase into a technical one, much in the same way that pig Latin can convert the simple term "nix" into the otherwise indecipherable "ixne." In this sense, legalese seems like a special language that lawyers have developed to fool lay people and create amorphous meanings that cause endless disputes. This point was expressed in a humorous way by Will Rogers:

The minute you read something and can't understand it you can almost be sure that it was drawn up by a lawyer. Then if you give it to' another lawyer to read and he doesn't know just what it means, why then you can be sure it was drawn up by a lawyer. If it's in a few words and is plain and understandable only one way, it was written...