Monday, September 24, 2007

Legal writing isn't what it should be #6

Many lawyers maintain a misguided sense of professionalism, which often leads to an unnecessarily formal writing style that ignores audience needs.

Young lawyers, I forgive. They do not always know which words and constructions are necessary in legal writing and which are fluff. Besides, they're learning a new language. It's the goal of the novice to master the legal language, whatever it is. So when young lawyers, out of a misguided sense of professionalism, try to “sound like lawyers,” I forgive them.

But when an experienced lawyer writes in a fluffy, legalistic, hyper-formal style, I'm unhappy. It should be the goal of the expert to shed legalese. It should be the goal of the expert to not sound like a lawyer. It should be the goal of the expert to communicate, not to impress. Besides, almost no one is impressed by traditional legal language.

Yet I've had lawyers tell me they need to write in a formal, legalistic style so clients are mildly intimidated. The intimidated client needs the lawyer. I've had lawyers tell me clients prefer and expect traditional legalese. The legalese reassures them. And although no lawyer has ever said it to my face, some lawyers take pride in sounding stuffy and formal.

Anyone who reads this blog knows I reject these positions. And I’m not alone in suggesting that writing in a way that requires a client to consult a lawyer to understand the document is a bad thing: “We cannot in justice to our job expect the client to employ us to interpret our own documents nor should we require him to consult our professional brethren for this purpose.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 72 (Michie Co. 1967).

Mr. Parham said that40 years ago.

Instead, I believe, clients prefer and respect those who can write in everyday English:
If the clients can read the contract more easily and resolve contract questions themselves, doesn't that mean fewer billable hours for the lawyer? My experience is that clients—on both sides of a negotiation—respect the lawyer’s ability to express ideas clearly. When they see good writing, they are less likely to try to do it themselves. While most business people can fake “legalese,” writing in plain English takes practice. It takes real talent to express complicated legal, technical, financial, and commercial ideas in a straightforward way.
David T. Daly, Why Bother to Write Contracts in Plain English?, 78 Michigan Bar Journal 850 (1999).

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