Is The Legal Writing Style Really Convoluted And Long-Winded?

Lawyers are constantly chided about "legalese," a phrase that has come to mean verbosity and pomposity. There is a one-word response to these gripes, however that even the most ardent lawyer-hater cannot argue with; precision. Yes, we would like our contracts to read as smoothly as well written novel. But it's much more important that they accurately reflect the parties' understanding. Doing this sometimes takes more words and a construction more awkward than high school English teachers would like.
 

There is no doubt that the general writing style of lawyers does not conform to the general writing style-grammar, syntax and everyday usage of the English language. As the basic intent of legal writing is that nothing should be left clarified or ambiguous to avoid potential legal troubles later. Here's an example of the importance of precise legal writing:

Fred and Sally Jones want to sell their car to Hank and Myra Smith. Fred-who happens to belong to the Ardent Lawyer-Haters Local-says he's going to write the contract.

He writes this:

Fred and Sally Jones agree to sell one of their cars to Hank and Myra Smith for $5,000. If they find anything seriously wrong within 30 days the deal is off Hank-a law student-says, "Hold it, Fred. There are a few questions here your contract doesn't answer. For instance: Which car exactly? Who are we supposed to pay the money to? If it's you, do you want cash or a check or a certified check? When? Who is the 'they' in the 'if they find anything seriously wrong'? When does the 30 days start running? Assuming that you meant find something wrong with the car and not with life in general, how do you define 'wrong'? What is meant by 'serious'? What if one of you dies or you get divorced before the sale?

A legal document would read like this:

THIS AGREEMENT is made the 1 day of June, 1991, by and between Fred and Sally Jones (the "Sellers") and Hank and Myra Smith (the "Buyers"). The Sellers agree to sell and the Buyers agree to buy an orange Volkswagen Beetle, registration number 34522435 (the "Car"), for the sum of $5,000, which shall be paid to the Sellers on June 15, 1991, at the Sellers' home (the "Closing Date"), in the form of a certified check payable jointly to the Sellers (the "Check").

Upon receipt of the Check, the Sellers shall deliver to the Buyers the title document and keys to the Car.

Sellers agree that if the Car develops serious problems within 30 days from the Closing Date, then the Buyers may return the Car to the Sellers and the Sellers will refund the entire sum of $5,000. The term "serious problems" shall mean defects that cost more than $2,500 to repair provided such defects are unrelated to damage to the Car occurring after the Closing Date.

In the event that prior to the Closing Date either of the following occurs: (i) the death of any of the Sellers or the Buyers or (ii) the divorce of the Buyers, then this contract shall be null and void. Phew. A mouthful, you think. Well, maybe. But look at the questions that Hank-acting like a good lawyer-asked. They were all legitimate concerns that both the buyers and the sellers should have considered. And because they were not addressed by Fred's contract (pristine and simple as it was), they would have to be hashed out in court should the Jones and Smith families ever have a falling out over the car.

With a contract that addresses every eventuality, the parties' lawyers can determine clearly who is wrong and who is right. It would be foolish to incur the enormous expenses of a trial when the outcome is predictable.

Good legal writing buttons down every variable. Consider the last paragraph of our contract. An English major might rewrite it to sound smoother.

In the event of (i) the death of any of the Sellers or the Buyers or (ii) the divorce of the Buyers prior to the Closing Date, then this contract shall be null and void. By simply moving the "prior to the Closing Date" phrase, we have shortened the sentence and made it easier to read.

But we have also drastically changed the meaning. Now, it could be read to mean that the contract will be void if the buyers get divorced before the closing date but it will be void whenever any of the four people involved dies, whether that's before the closing or ten years after-clearly not the intention of the parties.

Good legal writing can also result in much more concise documents. Look at the capitalized terms in our example of the car contract. These capitalized terms are known as "defined terms." Lawyers use them constantly and for good reason. They can compress a great deal of information into a short word or phrase that can be used in later references. Consider this example, based on an actual legal document: The Commerce National Bank, Inc., a Delaware Corporation; the Commerce National Holding Company, Inc., a New York Corporation; the Commerce Financial Assistance Corporation, Inc., a New York Corporation, their stockholders, subsidiaries, affiliates, partners, officers and directors, predecessors in interest, and successors in interest (hereafter called "Commerce"). The first reference to all of these people and corporations was a jawbreaker. But because the parenthetical note indicates that throughout the rest of the document we will be referring to them all by the shorthand notation of "Commerce," we can save gallons of ink and hours of eye strain.

There is virtually no end to the minuscule choices of words and phrasing that can make all the difference in the world.

Note, for instance, that the use of the word "any" in "any of the Sellers or the Buyers" is proper. To use the better-sounding "either" is incorrect because "either" connotes only two units and the sentence could be interpreted to mean: "the death of either (i) both the Sellers or (u) both the Buyers," when in fact what was meant was if any of the four die.

These are the finer points of legal drafting, which you will probably not learn until you are in practice. But in your early years as a legal writer, it is important to understand the importance of precision-of translating the thought into words exactly. Multimillion-dollar lawsuits-have been won or lost on issues as tiny as the use of one word when another was meant.

Here's how you can make your legal writing more concise and effective and less verbose and rambling.

Don't compromise on accuracy. Whilst speaking in the court you will have a chance to rectify an oral mistake but the written word is final and there is no second chance for inaccurately written words and could cost your client his case and you your reputation. Research your documents well and edit them well - judges have zero tolerance for misstatements of fact or law.

Let your writing have clarity. Don't repeat yourself. Make sentences short. They should be able to convey the message even if someone just skims it for a second.

Brevity is virtue. Many judges find long winding submissions annoying and don't go through them which make your elaborate efforts rather useless, doesn't it? Avoid needless arguments and during editing slash mercilessly things that you think are really not required. Remove all that can be eliminated out as long as truthfulness, lucidity and genuinely crucial points are retained.

Keep your facts in a chronological order. Make it read like a compelling narrative. Never ramble. If you do the reader may lose interest before he reaches the strongest points. The aim here is to enchant and engage the reader with a genuine true-life essence that is persuasive and convincing, while at the same time involving the reader with a flavor of the legal arguments to follow.

The important thing to remember is that you cannot cloak a badly written document in legalese. For effective legal writing just follow these six golden rules, be truthful, be transparent and clear, be brief, know who you are writing for, structure your details well and finally make your presentation and interesting narrative.