Before you read further, answer this question: What is the definition of legal writing? (Take your time.)
Perhaps you defined it; if you did, your answer likely differs from that of our other readers. Or perhaps you gave my usual response: “B-hah! There is no such thing.”
Wikipedia disagrees. An entire article characterizes “legal writing.” It states, “many practicing lawyers, busy as they are with deadlines and heavy workloads, often resort to a template-based, outdated, hyperformal writing style . . . . This is understandable, but it sometimes unfortunately perpetuates an unnecessarily formal legal writing style.” (Wikipedia, “Legal Writing” (Nov. 15, 2013).)
Brian Garner disagrees too, really. His seminal book title centers on that term: Legal Writing in Plain English. Lawyers do, after all, write about the application of law to life. Bryan’s prescription for Plain English starts with thinking, being sure of what points to make. Using fifty sets of exercises, Garner progresses from how to decide the point to be made, through creating a logical sequence of supporting thoughts, to disciplines for organization and efficient expression. (I highly recommend Garner’s teachings on writing by lawyers.)
Why, then, would I disdain the concept of “legal writing”? Because to me it connotes an imagined virtue in learning to write undisciplined, arcane, and dense prose. Take away that assumption, however, and I readily admit that most of us suffer from relaxing into so-called legal writing. It is laden with prepositions, dependent clauses, reflexive verb phrases, and afterthoughts. Our writing can resemble a boxwood shrub left unpruned for years—branches projecting at random, without direction or purpose, on which grow other undisciplined branches with minds of their own. They catch your clothes on your way by. A witty example:
Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceivable, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures.
In plain words: “If it ain’t broke, don’t fix it.”
Why should the oral advocate care? Ironically, Garner elevates spoken advocacy to a higher position. Among Garner’s fifty exercises is number 20: “Make everything you write speakable.” While his exercises on Rule 20 address written expression, Rule 20 invites careful scrutiny by every courtroom lawyer.
What, after all, is admirable about “speakable” expression? Saying it out loud renders it no more speakable than any loosely conceived thought, or boxwood bundle of words. Our rule 20 for trial lawyers must be, “Make everything you say speakable.” That is, make it understandable in the milliseconds it takes to listen to it as it passes you by.
So, the question I posed above is worth extended reflection. If we cannot personally distinguish the effective character and purpose of legal writing, we surely will suffer as trial lawyers in our legal speaking.
Rather than “B-hah,” take time to consider carefully your definition of legal speaking. Consult Garner. Hear yourself. In NITA trial and deposition programs, our students speak all day. On each try, they learn how a more simple point, a better logical backbone, a more direct expression, and non-technical language immediately improve their performance.
“Legal speaking for the performing advocate”—worthy of unending practice and critique.
Best wishes to you all for a glorious Thanksgiving,
Karen M. Lockwood, Esq.
President & Executive Director
National Institute for Trial Advocacy