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Bar News - June 8, 2007

Book Review: Lifting the Fog of Legalese



Lifting the Fog of Legalese

By Joseph Kimble



When I was a law student back in the ’80s I took a writing course from Steven Stark, author of Writing to Win. As a frustrated reader of countless dense and confusing appellate decisions, I was hooked on Stark’s message. He emphasized concise prose and plain language. We had to write for each class. And in each class, Stark showed us how to make every assignment tighter and more precise. He urged us to write for the reader. I was sold. This was a way to make legal writing understandable and useful.


Practicing law a year later, I found that it was not so easy to use Stark’s plain language principles. “That’s not the way we write pleadings,” I was told when I drafted one starting with the name of the client rather than the standard “NOW COMES THE PLAINTIFF, BY AND THROUGH HIS ATTORNEYS …” When I used Stark’s arguments for eliminating unnecessary words, I was told that that was not the way it was done in New Hampshire. The newest attorney in the office, I decided to let it go. I figured the plain language movement was moving slower than I anticipated, but that soon everyone would see the light.


I was wrong. Some of my students appreciate my emphasis on plain language. Many resist. The same is true for lawyers. In writing CLEs, most lawyers cringe when I suggest edits to common phrases, such as substituting prior to to before. Their arguments against cutting extra words? It dumbs down the content. It omits terms of art. Putting legal content in plain language over-simplifies its complexity.


In Lifting the Fog of Legalese, Joe Kimble debunks these and other myths about using plain language. Using data compiled from state surveys, Kimble shows what readers prefer in legal documents. As he shows through many examples, readers—lawyers and lay people—greatly prefer writing that is orderly, clear and readable. Kimble does more than present the problem; he explains why conventional legal writing frustrates its readers. Even better, in this collection of essays Kimble shows the reader how to improve legal writing through clear directives and multiple examples. And he does so in an unaffected way that both entertains and respects the reader: “Have you ever heard anyone object that a piece of legal writing is too clear? Moreover, a clear, plain style—far from being unsophisticated—only looks easy; it takes skill and hard work.”         


Kimble’s book joins many that beg lawyers to write clearly and precisely, such as Richard Wydick’s Plain English for Lawyers, Howard Darmstadter’s Hereof, Thereof, and Everywhereof: A Contrarian’s Guide to Legal Drafting, Bryan Garner’s The Winning Brief, and dozens of legal writing texts. Most of these books include helpful directives, such as Kimble’s “Prefer short and medium-length sentences. As a guideline, keep the average length to about 20 words.” Kimble, like others, has lists of obscure phrases and their plain language counterparts, such as using by or with instead of by means of.


As with many of his counterparts, Kimble advocates for clear organization, bulleted lists, subdividing long sections with headings, using readable fonts, and omitting extra words. These lists and directives are great. For plain language converts, they remind us to sharpen our prose. For the interested, they provide clear guidance.


Kimble’s essays, however, provide far more than lists and examples, uncovering what it means to use plain language. As he says, “[V]ocabulary is just one part of plain language. Plain language, rightly understood, involves all the techniques for clear communication: planning the document, designing it, organizing it, constructing sentences, choosing words, and testing mass documents on typical readers.” In Lifting the Fog of Legalese Kimble shows us how to apply these techniques to judicial opinions, jury instructions, court rules, federal statutes, and impeachment orders. Throughout, Kimble emphasizes that writers need to use judgment and apply the rules flexibly. He concedes that writing plain, clear prose does not always mean less text.


If I were to recommend one essay, it would be First Things First: The Lost Art of Summarizing. There Kimble convincingly argues that all legal writers should provide a road map for the reader at the beginning of every document, issue, and section. Using original and revised summaries in opinions, briefs and memos, Kimble shows both the product -- what these summaries should look like — and the process -- write them last, using the “crucial facts, the deep issue, and the answer.” Similarly, Kimble shows readers how to write summaries for statutes and transactions, where the goal is to provide a capsule overview.


I found Kimble’s essay on summarizing particularly compelling given what I have learned from my teaching colleagues Amy Vorenberg and Margaret Sova McCabe. In recently surveying and interviewing judges about effective writing, they have repeatedly heard that lawyers’ writing would benefit from having summaries at the beginning. These judges would agree with Kimble: “[I]f a business memo can have a heading like ‘Executive Summary,’ why can’t an opinion have one too?”


In his essay Plain Words Kimble quotes George Bernard Shaw: “In literature the ambition of a novice is to acquire the literary language; the struggle of the adept is to get rid of it.” Kimble is adept - Lifting the Fog of Legalese is a treasure for lawyers who want to write more clearly.


Sophie Sparrow is a professor of law and director of Legal Skills at Pierce Law Center in Concord. She received the Inaugural Award for Excellence and Innovation in Teaching Professionalism.



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