Legal Writing as Communication. (Posted by Gabe)

I've done a lot of study on communication, partly because it is necessary for what I do, and partly because I love it. I love it because communication is all about connection--connecting the communicator with the audience. What works in some cases will utterly fail with others! It doesn't matter how fluent you are, or how much work you have put into your communication, or even how skillful you are; if you don't connect, you have failed to communicate. That is why knowing your audience is such a critical part of communication.

Being a student of communication, I am often fascinated by the forms that communication can take. Communication has changed a lot in a short period of time. For instance, have any of you ever read the Federalist Papers? If you have you were probably--as I was--overwhelmed by the complex arguments and language. But those were written for New York farmers as the newspaper editorials of the day! If someone tried to write papers like that today, they would ultimately have a complete failure to communicate (sorry, Cool Hand Luke).

But I am often appalled to see the swing that we have made in the other direction. People today often don't, or can't, use even the simplest rules of grammar and punctuation. For instance, this blog tries to help students learn legal writing, but routinely violates basic rules of capitalization. That may be just fine if you are sending an Instant Message to a friend, but when engaging in any "real" form of writing it just makes you look uneducated or like you don't care about what you are doing.

Legal writing is a very specific form of communication, with a very particular audience. It is very different even than other types of legal communication--for instance, trial advocacy. Trial advocacy, talking to a jury, is all about telling stories, keeping the attention of laypeople who may be otherwise totally bored. Use to many big words, and you'll lose them. But if you try to tell stories to the judge in your legal brief, you'll be laughed out of court!

The other day, a member of my volleyball team found out that I was in law school, and proceeded to launch into a rant against the big words used by lawyers, and how everything should be more simple. I considered informing him that obtaining a Juris Doctor entitled me to use obtuse vocabulary to obfuscate the salient itemization of my exorbitant pecuniary demands, but thought better of it. But what is the appropriate use of complexity in legal writing?

To answer that question, I think we need to define the goals of legal writing. Depending on the type of document you are writing, the goal is either to persuade or to inform. Either way, legal writing must first be clear. Cases come down to very specific facts, and misstating those facts, or misleading the reader (either intentionally OR accidentally!) will cause the writer to lose credibility, and maybe even the case. Clarity also requires logical flow and organization.

Second, legal writing must be accurate. Clarity would be pointless if you clearly communicated a falsehood. There are certainly ways to artfully phrase negative facts, and effective advocacy requires the lawyer to use such art from time to time, but in the final analysis, the writing must be accurate. Accuracy also requires a certain element of completeness.

Finally, legal writing should be discerning. What I mean by this is that you should choose each word carefully. Using words that are offensive or can be misinterpreted has no place in good legal writing. If you offend someone, or if you give someone the wrong impression, you have detracted from the argument that you are making, and lost the link with your reader.

I told my friend about a modern movement called "Plain English for Lawyers." The basic premise behind the "Plain English" movement is that legal writing should not look any different than any other well-written document. Legal writing has a reputation for being full of meaningless repetition ("aid and abet," for instance), terms of art, and archaic grammar. These are certainly faults, and good legal writing has no place for terms like "heretofore" or "wherewithal."

But I would caution you against taking these considerations too far! Do not forget your goals in your quest to be simple. Always keep your audience and your goals in the back of your mind, and write with the persuasive power that comes when you communicate with clarity, accuracy, and discernment.

For More Information--

What is Really Wrong with the English Language?

Wikipedia on Legal Writing