Most lawyers are poor writers. Poor at regular writing and poor at legal writing, the latter requiring both good regular writing
and analytical skills. Analysis aside, the body of routine legal writing is fat with verbosity and rife with punctuation and grammar mistakes. Practicing law doesn't necessarily make one a better writer. Instead, in many cases it seems to make one worse.
Auto mechanics, carpenters, and electricians who misuse their tools suffer injury or unemployment. The same can't be said of lawyers and their misuse of words. As inexplicable as it may seem, profitability as a lawyer does not depend on mastering the rules of syntax and semantics. But "legalese" is a criticism, not a compliment, my professional colleagues. Like it or not, how lawyers write, and how they're perceived to write, negatively affect our collective public image.
Who cares? Some judges do. Like United States Bankruptcy Judge Robert Kressel from Minnesota. Last week he sent out
guidelines for lawyers submitting proposed orders to him. Some of those guidelines address and exhort lawyers to use to "use regular grammatical English as much as possible." That lawyers practicing in Judge Kressel's court apparently had not been using "regular grammatical English" is understood, but not understandable, prompting the judge's issuance of guidelines such as these:
Guideline No. 5 – Quotation Marks and Parenthesis
Do not include quotation marks or parenthesis (sic) to indicate a shortened version of a name. For example, the common reference in the first sentence to First National Bank of Minneapolis (“Movant”) is wordy, somewhat ungrammatical, unnecessary, and certainly clutters up the order. Please don’t do it.
Guideline No. 6 – Capitalization
Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.
Guideline No. 7 – Use of articles
Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”
Guideline No. 8 – And/Or
Never use “and/or.”
Guideline No. 9 – Superfluous Words and Phrases
Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: “hereby,” “herein,” “in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,” “immediately,” “heretofore entered in this case,” “be, and hereby is”–the list goes on and on. Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”
A good opening line for an order would read something like: This case came before the court on the motion of First National Bank seeking relief from the automatic stay. Referring to it as “this case” is the most accurate and succinct description. It is unnecessary to refer to it as “matter,” “proceeding,” “proceedings,” “that certain,” “subject,” or “above titled.” If the order is for an adversary proceeding, then refer to it as “this adversary proceeding.”
Refer to the automatic stay, simply as the automatic stay, not the automatic stay of actions. Do not refer to an order granting relief from the automatic stay as an order for relief. An order for relief is something entirely different. In addition to superfluous words, watch for superfluous and wordy phrases. Examples include referring to a motion as “filed with the court” or an “order heretofore entered in this case. How about “order?”
Guideline No. 12 – Undersigned.
Never use the word “undersigned.”
Guideline No. 16 – Plurals and Possessives
Keep plurals and possessives straight and consistent. Know when to use debtors (plural), debtor’s (singular possessive), and debtors’ (plural possessive). Make sure the verb matches the subject of the sentence.
Guideline No. 17 – Its and It’s
Please use the possessive noun “its” and the contraction “it’s” correctly.
Judge Kressel must really abhor the word "undersigned", as it made his dishonorable mention in both Guidelines 9 and 12. But judge, you may wish to consider the following for Order Preparation Guidelines v2.0:
Guideline No. 1 – Electronic Format
Submit Aall proposed orders must be submitted in electronic form, It should be converted directly from Word or WordPerfect to PDF. It Do not create them should not be created by scanning them it from their its original Word or WordPerfect form. If they are it is scanned, I cannot make additions or changes. As an aside, although scanning documents is acceptable under our local rules and orders, I it is highly discouraged it because since a scanned document it takes up a much greater amount of more space than a document that is created and then converted directly into a PDF document.
Remember, judge: eschew the passive voice. It weakens everyone's writing, including yours. And more than one parenthesis are parentheses. You need a verb in the last phrase of Guideline 7, lose the comma in the first sentence of Guideline 11, and "its" in Guideline 17 is a possessive pronoun, not a noun, judge. Other than these persnickety points, however, your guidelines are a clarion call to lawyers to write better, clearer, and cleaner product. Boilerplate be damned. Wouldn't it be something if lawyers someday were recognized for how they thought and problem-solved, rather than for how they sounded? Daily I try to not "sound like a lawyer". Blogging helps.
In a comment over at the always excellently written
Simple Justice, on a post regarding "3Ls" (third-year law students) teaching legal writing to "1Ls" (first-year law students),
lawyer/blogger Carolyn Elefant summed it up most elegantly:
[G]ood legal writing takes time. * * * I read the latest books and blogs on it, [and] I pay attention to the well written briefs that come through my door. Great legal writing is such a joy to behold, a combination of analytical acumen and art. I think those who minimize it are unable to recognize it.
Lawyers practice law; they should practice their writing, both regular and legal, as well. Lots and lots. And with such practice the words they will need to convey clever, clear and convincing legal thoughts should become smaller, both in count and syllables. Fewer words also require less punctuation and encourage simpler grammatical constructions. All beautiful things.
According to the "Suicide" puzzle found in
Lateral Logic Puzzles, college professors Henry, a philologist, and his wife Ann, a physicist, after having being implicated in the defalcation of college funds, were found dead in their home beside a typewrtten note: "This is the only way out for Ann and I." A responding police officer (and
@GrammarGirl follower) instantly rejected the notion that Henry had killed his wife and then himself. Why? Would the officer have thought the same if Henry had been a lawyer?
Thank you, Judge Kressel, for the nudge. And hat tip to the
Lawyerist for reporting. Come back on Sundays for more grammaring.
