The federal government wants to adopt plain language - really! (Novel concepts in the law, Part Two)

One of my favorite parts of law school (please excuse this trip down memory lane) was taking writing classes. My school required two of them: Research and Writing (first year class), and Advanced Writing (usually a third year class). Research and Writing taught a research method and introduced the concept of "plain language." Advanced Writing made more targeted use of those skills through writing briefs, usually intended for an appellate case. (I also took another writing class, because I am a glutton for punishment, which I did as a directed study. Ask me if you ever want to see it, it's about the US Supreme Court's interpretation of the Americans with Disability Act, and other cases related to that).

The idea behind plain language is that a legal writer should make it easy for a reader to find the meaning in any document, and be able to understand what the writer is trying to convince the audience to do. This means using almost no "legalese," which might confuse the reader. Legalese would be something that sounds traditional and impressive, but actually makes its meaning more difficult to determine. For example, the phrase, "indemnify and hold harmless," where both terms could mean the same thing to a reader.

Brian Garner is often given credit for many of the plain language ideas. He's written books on the subject, and has (what I would think is) a dream job -- he edits other people's work to make it more reader-friendly, for use in legal briefs, and other documents. He is also cited as a source for
this government article on writing for your audience.

But - back to Novel Concepts in the Law: Plain language is a great way to win cases! Write for your audience, even if the audience is different from each other. The judge will know the law, go ahead and write a brief on what you're doing. But don't get all technical & weird in the writing. Make sure 1) your client understands why you're doing what you're doing, and it's good if they can understand your argument in the Brief and 2) the judge will have an easier time agreeing with you if you can make the writing easy for him or her. Just show that you know the law, too, and that it agrees with what you're trying to do for your client!

Length: will it make a difference? Federal Appeals briefs to be reduced in length

My thinking is that there is more cutting that could be done. A brief should get its point across in the first three paragraphs, and then explain its points, and then it should summarize.

If you cut to the chase, it makes a judge's job easier, and then he or she is more likely to agree with your argument. 

A proposal to cut the length limit for main federal appeals briefs by 1,500 words has generated a lot of comments.

Most commenters oppose cutting the cap from 14,000 to 12,500 words, report the National Law Journal and University of Chicago law professor Will Baude, writing at the Volokh Conspiracy. Among those taking a stand are appellate practitioners, judges, bar associations and advocacy groups.

Article here (via ABA journal). 

You think that legal writing requires legalese? (on writing well)

"Legalese" is a term given to phrases like "indemnify and hold harmless:" not everyone knows what it means, but since it sounds legal, lawyers can get away with using it, even though they shouldn't. Or even though they're sometimes not sure themselves what the "terms of art" mean.

One of my favorite reads is the monthly legal writing article in the Michigan Bar Journal. It's often written by Joseph Kimble, who is responsible for the Legal Writing classes I took in law school. His approach to legal writing is that it's something that shouldn't require a law school degree to interpret.This approach is also called Plain Language, or Plain English. It's not been wholeheartedly embraced by the legal profession, which is, not surprisingly, slow to change.

Anyway, this month's Bar Journal has another great column by Professor Kimble, titled "You Think the Law Requires Legalese?" From the article:

"lawyers tend to greatly exaggerate the extent to which the law requires specific, unalterable wording in legal and official documents. . . .

research show[s] that the terms are unnecessary, troublesome, best used together with plainer terms, or replaceable with a plain equivalent.  For example: give, not give, devise, and bequeath; interest, not right, title, and interest; together and individually, not jointly and severally.

  . . . Terms of art are more rare and more replaceable than lawyers think. . . . The law is no serious obstacle to writing clearly and plainly. 

 Full article here.