Some Thoughts on Good Legal Writing
By James J. Clarke
When I told a friend I had begun teaching a legal-writing class, he could not resist a joke. "Is that where they teach the kids to write so no one can understand them?" I knew this was like other lawyer jokes. No matter how funny, they all reflect some degree of hostility to our profession. It’s not just the few high-profile problems, such as lawyers’ involvement in corporate scandals. It is, in my opinion, something more fundamental. There seems to be a general belief that lawyers often write to conceal or to obscure the truth. If truth remains one of society’s highest ideals, how can the legal drafter be an admirable citizen? My friend, an intelligent and experienced businessman, said he was lucky to understand half of the provisions his lawyers drafted on his behalf. These provisions concerned concepts with which the client was thoroughly familiar. He knew the industry better than the lawyers did. How could he have so much trouble reading the darned contracts? This man was clearly frustrated. In his situation, who wouldn’t feel a little hostile?
That was last year. Having now taught the course several times, I would like to make a few observations on the teaching of legal drafting and how we, as practitioners, can help new lawyers to continue their education.
Law students already know how to write so that no one can understand them.
Many students cannot resist the urge to "write like a lawyer." We all carry certain archetypes and stereotypes in our minds. The lawyer, we may suppose, emerges from a richly paneled courtroom carrying a leather briefcase. The lawyer pauses on the top step of the old granite courthouse before heading back to the office. There, reaching across a mahogany desk and hefting a pen of exquisite quality, the lawyer begins to write:
NOW THEREFORE, IN CONSIDERATION OF the premises, the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party of the second part does hereby sell, transfer, convey, set over, mortgage, hypothecate, devise and demise to the party of the first part, and does hereby grant to the party of the first part a valid prior security interest in the right, title and interest of the party of the second part in and to, the property described on Exhibit A hereto attached and hereof expressly made a part.
Exhausted by the brilliance of this effort, the lawyer retires to the nearest Inn of Court.
Experienced practitioners will recognize that the cited language is no parody. Faced with such models, is it any wonder that many students (and lawyers) believe they must abandon all conventions of clear English and adopt an awkward and verbose style? Some believe this is expected of them. Some think that simple declarative sentences will be disdained as unworthy. Some think ‘will’ is a poor substitute for ‘shall’ and ‘that’ is no match for ‘said’.
As one veteran law professor has noted:
[I]t’s in the great legal tradition to lard everything from letters to lawsuits with inappropriate language and legal theories that don’t belong. Why? Fear.
It’s the nagging realization that you are more likely to be criticized for leaving out something important than for putting in something useless.1
Yet many students seem eager to break the mold. Perhaps they want to avoid being the butt of lawyer jokes. Perhaps the archaic language jars on their MTV sensibilities. Perhaps they have studied the "plain English" laws and wondered why clarity should be limited to consumer contracts. Maybe a few hope that clear legal drafting will foster truth and justice. They are encouraged and supported by the expansion of legal-drafting courses. A few law schools even offer courses on drafting documents for practice specialties.
Many students have not been taught basic writing skills.
One excellent textbook2 includes a long chapter entitled "Writing Carefully." Unlike the chapters that address the special challenges of certain types of documents, such as wills, this one deals with parallel structure, conciseness, and tone. Is the chapter useful? Very. But is it really needed in a text intended for lawyers and law students? Apparently so. C. Edward Good, a Washington lawyer, has tapped a large market of professionals and business people who want to write well. His latest work is A Grammar Book for You and I . . . Oops, Me!3 In it, he cites a Newsweek magazine article. The article’s title tells it all: "So I’m Like, Who Needs This Grammar Stuff?"4 Recalling a junior-high English teacher who reinforced grammar drills with a lively rapping of students’ knuckles, Mr. Good writes:
In too many English classes across America, grammar is passe; verb conjugation, a forgotten relic of the past . . . . Today, under modern educational theory, the study of grammar is viewed by people daring to call themselves experts as a nuisance, as unnecessary dogma, as only slightly related to the skills of the writer.5
Some readers will recall when diagramming was not the exclusive province of sports coaches and when Latin seemed slightly less dead than it does today. May we not assume that many students’ scant acquaintance with what are now called the "conventions of writing" will impair their ability to master the subtleties of legal drafting?
Law students love forms!
One car manufacturer used to claim, "Dogs love trucks!" Just as surely, law students love forms. Given the understandable fear of omitting important provisions and the expectation that legal drafting should be numbingly redundant, who can blame them? Forms are more widely available than ever. Forms that once required a trek to Horder’s or the law library can now be accessed online. Just fill in the blanks—how easy it seems! Sometimes it may actually be that easy, as when the forms are prescribed by statute or regulation. Other times, using forms is downright dangerous. Experienced practitioners know this. Law students don’t. They may have to learn the hard way that there are consequences when, say, a trust agreement includes or doesn’t include a no-duty-to-diversify provision.
Bad legal drafting is usually worse than no legal drafting.
A teacher learns a lot from a student’s reaction to a grade. Suppose the assignment was to draft a consulting contract. A memorandum set forth twenty facts, such as salary, bonus, and term of employment. As in all legal drafting, the students were to anticipate consequences by asking, "What if . . .?" One student can’t figure out why his paper did not get a better grade. After all, he had the client’s name and address exactly right. The compensation was correct to the penny, and the start date was perfect. All told, he included fifteen of the facts. "Since no one is perfect, the highest possible score is nineteen," muses the young philosopher, "which makes my fifteen remarkably good. So what am I doing with this stinkin’ C-?" Of course, it’s always the little things. Is that compensation payable in a lump sum or installments? In advance or in arrears? Weekly, bi-weekly or semi-weekly? And what’s the difference, anyway? Is it consistent to provide that the contract can be terminated upon notice by either party and to allow termination only by agreement of both parties? As any experienced practitioner knows, some of these concepts can get pretty complicated, and students cannot be expected to know all the buzzwords. The remarkable thing is how many students do figure out the implications and consequences of their drafting just by thinking and asking, "What if . . . ?"
What we can do to help.
As employers, advisers, guides, and role models, we can help the rising generation of lawyers. We can admire them for trying to escape the stereotype of legal drafting. Within the economic constraints of law practice, we can encourage these new practitioners to question the models of prior deals and earlier generations. We must not discourage them from asking why the provision should read one way and not another. And we must be happy when they turn out to be right. The balance of learning will be theirs, but we will learn too. After all, how many of us can say that we have fully understood everything we have been credited with—or blamed for—drafting?
Thanks to current trends in legal education, and perhaps societal changes as well, some students are emerging from our law schools with a new idea of what it means to "write like a lawyer." By encouraging them, we can renew our own respect for the discipline of legal drafting. Ultimately, the practice of law, and our profession’s reputation, will be enhanced. And maybe the jokes will get better.
1 J.W. McElhaney, "Good Words for Writing," ABA Journal, 50-51, at 50 (May 2002).
2 S. Brody, J. Rutherford, L.A. Vietzen and J.C. Dernbach, Legal Drafting (1994).
3 C.E. Good, A Grammar Book for You and I . . . Oops, Me! (2002).
4 "So I’m Like, Who Needs This Grammar Stuff?" Newsweek., October 20, 1997, p. 15.
5 Good, supra. note 3, at xii.
James J. Clarke II recently resigned as a partner at Pedersen & Houpt after 28 years of business practice with that firm. He received his J.D. from the University of Chicago and his A.B. magna cum laude from Harvard University. Mr. Clarke is a member of the Adjunct Faculty of John Marshall Law School. The opinions expressed in this article are his own
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