Bar News - August 17, 2016
New Lawyer Column: Making A Case for the Modern Style of Legal Writing
By: Lindsey B. Gray
To me, modern legal writing is a better, more persuasive writing style. But, I did not always hold that view. It took my clerkship experience – when I became the reader, as opposed to the writer – to appreciate the value of this writing style and embrace it as my own.
Like most lawyers, I learned to write in the “traditional” manner. In law school, I worked hard to develop my (traditional) writing style and hone my writing skills – I was an editor on law review, had elected to take advanced writing courses, and could recite the rules of the Bluebook by heart. I received great feedback on my writing and took pride in being a decent writer.
So, when I interned for an appellate judge as a rising 3L, I was shocked to receive a draft back that was covered in edits with red pen. I mean, completely covered. “Yikes,” I thought. “What did I do wrong?”
As it turned out, the substance of my draft was fine. However, my supervising judge subscribed to modern legal writing and did not particularly care for my long, drawn-out sentences, paragraphs that could fill a page, and the use of words like “hereinabove,” “aforementioned,” and “notwithstanding,” which were characteristic of my legal writing.
After incorporating the edits and going through several more drafts, the final product was completely different: It was half the length of my first draft. It lacked the archaic language and flowery sentences that I had grown accustomed to seeing in legal writing. It could be easily understood by a person reading at the third-grade level.
In other words, it was written in plain English.
To most, this might have seemed like an improvement. However, I did not think so. To me, lawyers were supposed to be sophisticated and their language and writing style was supposed to reflect that sophistication. This new, modern style of writing seemed elementary to me and, well, not “lawyerly.”
Despite my grievances, I certainly did not want to be the recipient of another draft that was completely covered in red ink. So, I took advantage of the opportunity to learn and worked hard to develop an “improved,” more modern style of writing. My hard work paid off and, by the end of my internship, there was less red ink on my paper. Still, I was not completely convinced that this writing style was more effective. When my internship ended, I drifted back to my more comfortable, traditional writing style.
After law school, I obtained a clerkship with the New Hampshire Superior Court, which was a game-changer for me. As a law clerk, I read pleadings and motions on a daily basis. The large majority of these pleadings and motions were written in the “traditional” way, replete with legalese that had me spending more time looking words up in the dictionary than conducting legal research.
Putting substance aside, I found that the pleadings and motions that were written in plain English were incredibly more persuasive than their more traditional counterparts. They were easier for me to understand, did not waste my time with repetitive arguments, and clearly defined the issues in the case.
I was sold.
Today, as a newly practicing lawyer, my experience clerking has motivated me to write in plain English. This means that, whenever possible, I choose simple terms over highly technical, scientific phrases. I use short sentences. I try to keep the noun and verb close together in a sentence. I prefer active voice over passive language. I strive to omit unnecessary words. I do not repeat arguments over and over and over.
As lawyers, we are always trying to improve our craft. In my experience, effective legal writing is clear, concise, and does not need to sound “lawyerly.” I would encourage all lawyers – new or experienced – to give plain English a chance.
Lindsey B. Gray is an associate at Abramson, Brown & Dugan in Keene and Manchester, where she practices medical malpractice and personal injury law. She has been a member of the New Hampshire Bar Association since 2011 and is a member of the NHBA’s New Lawyers Committee.