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Despite several decades’ worth of efforts by legal writing experts, there remains an unfortunate misconception in the legal community that legal writing ought to be difficult to read. Lawyers tend to adopt the language of their tribe: having learned the meaning of Latinisms such as res judicata, become fluent in redundant doublets such as “terms and conditions,” and mastered circumlocutions such as “the above-captioned case,” they introduce those devices into their own prose. Using legalese bolsters the new lawyer’s self-identity as a member of an impressive profession, and eventually it becomes an unnoticed habit.
Some lawyers believe that because the law is complex, writing about the law should also be complex. But the opposite is true. The law’s complexity provides another reason for legal prose to be clear. A lawyer’s job is to chart a path through complexity — not add barriers to understanding.
In short, clarity and readability are the primary virtues of good legal writing. Other stylistic defects — awkward idioms, word usage mistakes, clumsy rhythms, and so on — will be forgiven if the text is clear and easy to read.
Many lawyers resist this advice. Some confuse legalese with specialized “terms of art” that carry an established meaning that is cumbersome to express in ordinary language. Or their risk-aversion takes hold, and they suspect that if that if they modernize contractual boilerplate, they may be putting their clients at risk. It feels safer to do things the way things have always been done.
But the best stylists and legal writing scholars are unanimous in their preference for a plain-language style that is, as Jacques Barzun put it, “simple and direct.” Given this unanimity, one would expect that the plain-language style would be the norm in legal writing, but that is not the case. Most legal writing is turgid, boring, and unreadable.
There are exceptions, however. In particular, plain-language principles are increasingly evident in briefs filed by litigators at elite firms. We will study excerpts from such briefs. To give you a sense of what I mean, consider the following first paragraph from a complaint:
Californians are flocking to on-demand work. Instead of a daily commute, an outdated workplace hierarchy, and the daily grind of an inflexible 9-to-5 job, these workers enjoy the freedom to be their own bosses, set their own hours, and earn income whenever they want. Many such workers also choose to ‘multi-app’—i.e., simultaneously use the apps of several app-based network companies. By using multiple apps at the same time—e.g., Uber, Postmates, Grubhub, and DoorDash—independent service providers can more easily find service requests to perform.
In a later post, we will study that excerpt further and identify some of the writing mechanisms that make it as readable as it is. For now, however, just note that it is easy to read and nearly free of legal jargon. It reads more like a nonfiction bestseller than a stereotypical legal brief. That is what we should strive for.
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Ryan McCarl teaches Advanced Legal Writing and researches artificial intelligence law and policy at the UCLA School of Law. He is also a partner at the law firm Rushing McCarl. You can follow him on LinkedIn and Twitter as well as his personal blog.