Who’a [sic] afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.
But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.
Andy's "suspicious" attempt to rationalize those who don't see it his way by attributing it to fear, and thereby ascribing fearlessness to himself, doesn't serve to strengthen his argument.
The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary. That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view. Had these been written by, say Brian Garner, I might characterize them as strawmen, but in a gesture of magnanimity and the liberal application of Hanlon's Razor, no negative characterization is levied. Despite Andy's post bearing the banal scent of butthurt, the issue is worthy of discussion. As Sam Glover satirically wrote in response to a comment there castigating Andy for his persistence,
The title headings of his points are:
You’re right.. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.
Indeed, blogs about law practice are the appropriate place to argue about legal writing, and so I champion Sam's cause.
The problem with Andy's approach is that his basic premise is deeply, irreparably flawed. Andy explains his point of view:
[L]egal writing should be as easy to understand as possible to the widest audience possible.
A very egalitarian perspective indeed, but a very mistaken one. Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge. Briefs are not novellas, to be read by Court TV viewers with poor reception. Contracts are not magazine articles to be skimmed by those with passing fancy.
This said, it doesn't mean that Andy is entirely wrong. Far too often, lawyers grow unduly enamored of words they feel are "lawyerly," tossing in an errant "wheretofore" because it would take more effort to use more effective transition. As Andy argues, many lawyers, often with youthful abandon, toss about the words they believe to be more lawyer-like so that their writing appears to conform with their limited grasp of legal writing.
Also like Andy, they are wrong. Incomprehensible strings of lawyerish words may seem "learned" to non-lawyers, who mistakenly assume that the only reason they don't have a clue what the lawyer is writing about is their lack of a law school degree, but are nothing more than gibberish.
These two views, overly simple and overly lawyerish, reflect the polar extremes of the argument, and both are similarly misguided. Legal writing that serves to clearly and precisely convey the message to the judge is good writing. Writing that does anything else is not.
Or to put it another way, writing that thrills the masses, moves them, makes them laugh, makes them cry, becomes a part of them, but loses in court, is not good legal writing. That's because we are lawyers, and our duty is to present our clients' cause to the decision-maker as effectively as we can.
Wherefore, your affiant sayeth naught.
* From the Urban Dictionary:
| 1. | neener | ||
| (knee-nuhr) interj. An interjection typically used to taunt, ridicule, or boast. "No thanks to you, but I was able to score the last tickets to the show tonight, and you're not going with me, so neener!" | |||
| 2. | neener | ||
| Neener (noun) - A neener is a person who takes the fun out of things, usually just by being who they are. They usually will cite some lame reason like "They shouldn't give that free stuff to the employees, it should be used by the IT department" | |||
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