Monday, February 04, 2008

Writing for nonlawyers

16 Austin Lawyer 13 (Nov. 2007)

When writing for nonlawyers, some of us maintain a misguided sense of professionalism, which can lead to an unnecessarily formal writing style that ignores audience needs.

Young lawyers, I forgive. They don't always know which legal words and constructions are necessary and which are fluff. Besides, they're learning a new language. Their goal is to master legal language, whatever it is. So when young lawyers try to “sound like a lawyer,” I forgive them.

But experienced lawyers ought not write for nonlawyers in a fluffy, legalistic, hyper-formal style. The expert's goal should be to shed legalese. The expert's goal should be to communicate, not to impress. The expert's goal should be to not “sound like a lawyer.” Besides, almost no one is impressed by traditional legal language: Latinisms, Elizabethan usage (that's the 1500s), and ten-dollar words--not to mention long sentences, stilted constructions, and over-abstraction.

Yet I've had lawyers tell me they need to write in a formal, legalistic style so clients will be intimidated; the intimidated client needs the lawyer. I've had lawyers tell me clients prefer and expect traditional legalese; it reassures them. And although no lawyer has ever said it to my face, some lawyers take pride in sounding stuffy and formal because that's the way lawyers are supposed to sound. It's as if the writing carries this not-so-subtle message: “I'm a lawyer, and don't you forget it.”

I question these positions. And I'm not alone in suggesting that writing in a way that confuses the client 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 (1967).

Note the date: Mr. Parham said that 40 years ago.

You might ask what's wrong with having a big vocabulary of sophisticated words? Nothing's wrong with having--it's the using:
So if you have a big vocabulary and know a lot of rare and fancy words, that's fine. Be proud of your knowledge. It's important in reading and in learning. But when it comes to using your vocabulary, don't throw those big words around where they don't belong. . . . It's a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.
Rudolf Flesch, How to Write Better 25, 35 (1951).

Ultimately, 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 Mich. B.J. 850 (1999).

As Daly says, writing clearly about complicated topics is hard work. But it's worth trying.

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