Wednesday, August 17, 2005

Do judges prefer formal writing?


Professor Schiess,

Have you ever had trial judges complain because writing was too informal, or not "legalistic" enough?

I embrace your principles of simpler, clearer writing, but I wonder if sometimes judges grade down because the writing is not formal and traditional.


It's a legitimate question.

I don't practice in front of trial judges anymore, and I don't have current survey data on their writing preferences. But I read what judges write, and those who write about their preferences all say they prefer simple, direct, and plain writing. (Of course, what I consider plain may not be what a judge considers plain.)

The last survey I'm aware of was conducted in Michigan in 1987 and reproduced in Florida and Texas in 1990. In those surveys, over 80% of the judges preferred writing that was in plain English. So the overwhelming majority of judges do not prefer a highly formal writing style.

But apparently some do. About 15-20% it seems, from the data.

Yet I remain convinced that all judges appreciate clear, direct, simple writing. Frankly, I want to meet the judge who actually prefers long sentences, Latin phrases, Elizabethan usage, and lofty diction.

Still, I concede that for the formal parts of a document and for the format, you may sometimes encounter a judge who thinks "Hey, this looks different," and subconsciously, "Different is bad." I know attorneys who pride themselves on plain English but who still format their motions as they always have, i.e., in an old-fashioned way.

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