Law in layman's terms: Experts urge clarity over complexity in legal writing

Attorneys, judges and lawmakers nationwide are guilty of drafting long-winded and ineffective legal documents, and it’s time for them to cease and desist.
In other words, practitioners need to stop writing badly.
Scholars say poor legal writing has become a disease among lawyers.
Its symptoms: long sentences, excessive legalese and the use of archaic terms that do nothing to enhance the meaning of a document. “Hereinafter,” “aforementioned” and “said” are habitual offenders.
“A lot of people have a tendency to think the more words you use and the more convoluted your sentence structure, the more intelligent you sound,” said Hans Linnartz, a legal writing professor at the Duke University School of Law. “Unfortunately, what happens is that lazy people get their sentences just as complicated as their thoughts.”
Part of the problem is that people suffer from the mindset that the more formal and jargon-filled their writing is, the more “legal” it becomes, said Wake Forest University law professor Laura Graham.
“Just about every legal style manual advises against it, but it’s hard for them to rid themselves of the habit,” she explained.
Blame that on tradition. For centuries, legal documents have been marked by fancy-sounding phrases that have become the default when writing.
Take “null and void” as an example.
“One of those words is Norman French, and the other is Latin,” said Gerry Cohen, director of the North Carolina General Assembly’s bill-drafting division. “That dates back 500 or 600 years ago to the Norman invasion of England, when Parliament pulled some strains of law from France and some from the Romans. They wrote everything as ‘null and void.’
“It means the exact same thing in two different languages,” he said.
The legacy of that sloppy writing affects Cohen today, as state legislators often come to him wanting similar language included in their bills.
“Apparently English isn’t good enough,” Cohen said. “We need to throw in two other languages that nobody has spoken for 500 years.”
Bad writing, bad argument
Business Court Judge Ben Tennille said he constantly reads briefs that are too long and don’t center on the key points of an argument. The court frequently gets requests to extend the word limits on briefs as well, he said.
“The more complex lawyers make their writing and the less focused it is, the less effective it becomes,” Judge Tennille said.
It also makes the judge’s job harder, Tennille said. Every piece of added information must be considered, no matter how irrelevant it may be.
“You have to deal with the issues as they are raised because they may well go on to the appellate court, and the appellate court needs to know either what you did with them or what you would do with them,” he explained. “That makes it difficult if you’re writing opinions.”
Attorneys can also sabotage their success by using the passive voice because their words don’t pack as much punch.
“Passive voice shifts the emphasis of a sentence from the actor and action to the object,” Linnartz said. “Sometimes, this is a strategic good: ‘During the altercation, plaintiff’s nose was damaged by contact with my client’s teeth.’ That’s great for the defense, but the plaintiff’s counsel should never do this.
“Unfortunately, many lawyers thoughtlessly opt for the more clinical, abstract sound of the passive voice when they ought to go for maximum clarity and force: ‘The defendant bit my client’s nose off.'”
Judge Tennille hypothesized that attorneys lack the courage to write simply.
“They all probably feel a lot safer putting everything in so that they don’t get criticized for having left something out,” he said. “I think it’s perhaps a precaution [or that] malpractice prevention is part of it.”

‘Terms of art’
Despite the criticism, practitioners recognize that sometimes legalese is a necessary evil.
For example, federal regulations or restrictions sometimes limit the types of language Cohen must use when drafting a bill.
And in some cases, legal writing must include certain “terms of art,” or specific legal terminology, that cannot be summed up in plain English. That often occurs in practice areas that are complex by nature, such as mergers and acquisitions.
“The best legalese is language that captures a complex idea in just a few words, like ‘securitization,'” Linnartz said. “You can’t express the idea of securitization turning mortgages into bundled securities very easily without using that term.”
The trick is getting lawyers to distinguish between legalese that is expendable and jargon that is essential.
That’s what law schools are preaching now. But for lawyers already in the field, Judge Tennille has one piece of advice:
“If you can’t reduce your brief to a logical outline with brief bullet points, then you haven’t done your job,” he said.