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Improve your legal writing with Plain English for Lawyers

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Be as fancy as you like when you're sitting down to write. However, take the more plain-and-simple approach to your actual legal writing product.

Richard Wydick (1937-2016), one of the most influential voices for clear writing, is best known for his short book, Plain English for Lawyers (Carolina Academic Press, 6th ed. 2019). Wydick set out to write something for lawyers that was the equivalent of Strunk and White’s classic, The Elements of Style. His book has remained relevant and popular for more than 40 years.

Plain English for Lawyers grew out of a 1978 article by the same name (66 Cal. L. Rev. 727 (1978)). Wydick wrote the article while on sabbatical in New Zealand. He said he needed a “portable” project. According to Wydick, his dean “sort of smirked and said, ‘Well, go ahead young man, and give it a try,’ and sent me off with two-thirds of a salary to New Zealand to write my Strunk and White.” The article became popular, and Carolina Academic Press published an expanded book version, now in its sixth edition.

As a professor and consultant, I have recommended Wydick’s book for years. He diagnosed common legal writing problems and told readers how to fix them. He fol­lowed in the footsteps of David Mellinkoff and joined other advocates of plain English such as Bryan Garner, Joseph Kimble, and Wayne Schiess. I highly recommend Plain English for Lawyers, as well as works by these authors, to make your legal writing more clear and concise.

Mark your calendars: Legal Writing 101

You can learn more about how to improve your legal writing in an upcoming CLE series on the subject from the ABA Career Center. The first, Legal Writing 101, will provide you with tools to write more clearly and concisely and make your communications with clients and courts more effective. I will be sharing easy ways to improve legal writing with Barbara Bavis of the Law Library of Congress. The event is moderated by Tom Bolt, managing attorney of BoltNagi PC in the U.S. Virgin Islands.

Other sessions planned for the series include:

  • Advanced Legal Writing (January 2022)
  • Transactional Drafting (March 2022)
  • Legal Writing in Civil Practice (May 2022)
  • Appellate Drafting (July 2022)

The series is free for law student ABA members.

Omit surplus words

Following Wydick’s guidance and practic­ing his exercises will make you a better writer. The best tribute to Wydick is to remind ourselves of some of his lessons. All of these examples are from Plain English for Lawyers.

Wydick’s first and probably most impor­tant advice is to “omit surplus words.” Trimming the fat from your writing is a key first step in writing well. Although the phrase is not exclusively Wydick’s idea (think “omit needless words” from Strunk and White), it takes on added meaning in the legal setting. In addition to creating clear and concise writing for your clients and judges, omitting surplus words will help meet word-count or page limits more easily. The beauty of Wydick’s book is that it provides concrete ways in which to identify and cut out surplus words. These include:

CompoundSimple
at that point in timethen
for the purpose ofto
in accordance withby, under
with reference toabout, concerning

Avoid Compound Constructions: Spot these when you see three or four words doing the work of one or two words. Some examples:

VerboseConcise
despite the fact that although, even though
in some cases you will find often you will find
in the majority of instances the grantor will usually the grantor will

Compound constructions “suck the vital juices from your writing,” according to Wydick. “Every time you see one of these pests on your page, swat it.”

Avoid Word-Wasting Idioms: Often we use phrases that add nothing to the mean­ing of sentences. Train yourself to trim these phrases.

Prefer the active voice

In active voice, the subject of the sentence is the actor, e.g., “the plaintiff filed a motion.” In passive voice, the subject is acted upon, e.g., “the motion was filed by the plaintiff.” Sentences in passive voice are generally longer and can be ambiguous, as the examples below demonstrate.

PassiveActive
Our conclusion is supported by the legislative history. The legislative history supports our conclusion.
The trust had not been ­intended by the trustor to ...The trustor had not Intended the trust to ...
After 180 days, this Agreement can be ter­minated Either party can termi­nate this Agreement after 180 days.

Sometimes a writer may choose to use passive voice—where the actor is unimport­ant, unknown, or where the writer intends to hide the actor’s identity. For example, “The subpoena was served on January 19” (actor unimportant); “The data files were mysteri­ously destroyed” (actor unknown); “The plaintiff’s teeth were knocked out” (inten­tionally hiding the identity of the actor).

Choose your words with care

Choose your words with care—pick con­crete words, familiar words, and do not use lawyerisms. Concrete words “grip and move your reader’s mind.” Abstract words tend to be vague. Lawyers may want the wiggle room of a vague word, but we should resist for the sake of clarity. Watch out for attractive but vague words like “basis, situation, consideration, facet, character, factor, degree, aspect, and cir­cumstances.”

Abstract Words Concrete Words
In our present circumstances, the
budgetary aspect is a factor which must
be taken into consideration to a greater degree.
Now we must think more about money.

Wydick was a great champion of simple, straightforward language. “Given a choice between a familiar word and one that will send your reader groping for the dictionary, use the familiar word,” wrote Wydick. “The reader’s attention is a precious commodity, and you cannot afford to waste it by creat­ing distractions.” Even when using familiar words, prefer the simple to the complex or “stuffy.” Use the nickel word instead of the fifty-cent word.

Complex Simple
Elucidate Explain
UtilizeUse

Avoid lawyerisms. One of my profes­sors in law school said if you learned the word in law school, don’t use it in your writing. Although an overstatement—some­times we need co write “motion for sum­mary judgment”—the sentiment is sound. Lawyerisms or legalese “give writing a legal smell, but they carry little or no legal sub­stance,” according to Wydick. Non-lawyers may not understand them, and they add little or no meaning to the sentence.

Some examples:

  • Aforementioned
  • Whereas
  • Hereinafter
  • Res gestae

Arrange your words with care

In addition to choosing words that are easy to understand, a good writer needs to struc­ture sentences to make it easy on the reader. In the English language, the easiest word order to understand is subject, verb, object. When lawyers separate these key elements, they “test the agility of their readers by making them leap wide gaps between the subject and the verb and between the verb and the object,” according to Wydick. Such sentences tend to be unclear and hard to understand. Make it easier on your reader by keeping the subject, verb, and object close together.

GapGap Closed
This agreement, unless revocation has occurredUnless sooner revoked, this agreement expires
at an earlier date, shall expire on November 1, 2012 on November 1, 2012
The defendant, in addition to having to pay punitive damages, may be liable for plaintiff's costs and attorney fees. The defendant may have to pay plaintiff's costs and attorney fees in addition to punitive damages.

In addition, Wydick advises lawyers to put modifying words close to what they modify. In a mind-bending example, put­ting the word “only” in any of seven places produces different meanings in the follow­ing sentence: “She said that he shot her.”

It is generally more clear to put “only” immediately before the word it modifies. If that is still unclear, move it to the begin­ning or end of the sentence.

Ambiguous Clear
Lessee shall use the vessel only for recreation.Lessee must use the vessel for recreation only.
Shares are sold to the public only by the parent corporation.Only the parent corpora­tion sells shares to the public.

Train yourself to write well

How do you learn Wydick’s lessons? Prac­tice. Wydick included exercises in each chapter to reinforce his lessons. Sit down and take some time on a regular basis to complete Wydick’s exercises. Sometimes it can be difficult to find errors in our own writing. If you find that to be the case, edit someone else’s work. Look for some of the errors described above and elsewhere in Wydick’s book.

Your practice will pay off. I had the pleasure of working with a group of students in an Advanced Legal Writing course, implementing many of Wydick’s ideas over 13 weeks. Every week, the stu­dents completed an editing exercise based on one of Wydick’s lessons. Some of them said this constant training improved their writing more than ever before, including one whose note was selected for publica­tion by the law review.

We all had a copy of Strunk and White on our shelf in college. Add Plain English for Lawyers to the shelf in your law office. After all, there is a reason it has sold more than 1 million copies.

This article originally appeared in the Chicago Bar Association‘s publication, The Record, in September 2016. It has been adapted for this blog with permission.

Kathleen Dillon Narko Kathleen Dillon Narko is a Clinical Professor of Law at Northwestern University Pritzker School of Law. Professor Narko teaches Communication and Legal Reasoning and other legal writing courses. Her focus is teaching legal analysis through the vehicle of writing. She also consults with law firms and government organizations, providing training in effective writing. Prior to joining the faculty, Professor Narko practiced with a large law firm concentrating in commercial litigation.