puts poor writing on trial
March 19, 2004
Legal style can include wit, but not “legalese”
January 5, 2001
Lawyers are experts on persuasive writing
January 16, 1998
William Kunstler’s last will and testament
September 8, 1995
The gentle art of writing to stupefy your reader
First published by March 11, 1994
Does anybody know why lawyers write the way they
December 11, 1992
March 19, 2004
Judge puts poor writing on
By Stephen Wilbers
Poor writing can be
costly. It’s a point we writing instructors have been emphasizing for a
long time, but now we have evidence – $31,450 in evidence, to be exact.
That’s the amount
U.S. Magistrate Judge Jacob Hart reduced attorney Brian Puricelli’s
court-awarded fees for submitting written work to the court that was
“careless,” full of typographical errors, and “nearly unintelligible.”
shortcomings, Hart considered Puricelli’s courtroom work “smooth” and
“artful” in securing a $430,000 verdict in a complicated civil rights
case, Devore vs. City of Philadelphia, so he decided that his
court-awarded fees should be paid at two rates – $300 per hour for the
courtroom work, but only $150 per hour for the pleadings.
I can guess what
you’re thinking: $150 per hour for bad writing? Heck, I’d be
willing to write badly for a lot less than that.
In his fee opinion
Hart wrote, “Mr. Puricelli’s complete lack of care in his written product
shows disrespect for the court. His errors, not just typographical, caused
the court a considerable amount of work. Hence, a substantial reduction is
in order. We believe that $150 per hour is, in fact, generous.”
Even after defense
lawyers complained about the typographical errors in his work, Puricelli
continued to submit error-studded text. To illustrate the problem, the
judge quoted a paragraph from Puricelli’s response, marking each typo with
“As for there being
typos, yes there have been typos, but these errors have not detracted from
the arguments or results, and the rule in this case was a victory for Mr.
Devore. Further, had the Defendants not tired [sic] to paper Plaintiff’s
counsel to death, some type [sic] would not have occurred. Furthermore,
there have been omissions by the Defendants, thus they should not case
(Note that Hart gave
Puricelli a pass on the concluding comma splice. A period or semicolon
should have separated the last two sentences.)
judge pointed out, throughout the litigation Puricelli referred to the
trial court as “the United States District Court for the Easter District
religious persuasion of the presiding officer,” quipped Hart, “the
‘Passover’ District would have been more appropriate.”
To make matters
worse, Puricelli committed the ultimate error: He misspelled the judge’s
name, referring to him as the “Honorable Jacon Hart.”
went beyond typos. Paragraphs and pages were missing from the original
complaint he filed with the court and sent to defense counsel, the judge
lack of care caused the court, and I am sure, defense counsel, to expend
an inordinate amount of time deciphering the arguments and responding,
accordingly,” he wrote.
Puricelli said that he had not intended to insult the court and that he
had learned a valuable lesson. “I’ll try to do a little better on my
written work in the future,” he said.
city solicitor Stephen Miller, the city’s lead lawyer in the case,
approved of the judge’s decision. “The only regret I have,” he said, “is
that the judge didn’t cut his fees even further.”
First published January 5, 2001
Legal style can include wit,
but not “legalese”
By Stephen Wilbers
expect legal writing to be correct. You hope (pray?) that it is clear. But
do you expect it to be funny?
think legal discourse is necessarily dry and devoid of humor, consider the
following passage from Bryan Garner’s The Elements of Legal Style:
careful attention to structuring your thoughts simply and directly. If you do
not, readers will respond much as Justice Maule once did in listening to an
advocate: ‘Mr. Smith, do you not think by introducing a little order into
your narrative you might possibly render yourself a trifle more intelligible?
. . . I should like to stipulate for some sort of order. There are plenty of
them. There is the chronological, the botanical, the metaphysical, the
geographical, even the alphabetical order would be better than no order at
author of the authoritative Dictionary of Modern Legal Usage, Garner
himself offers plenty of wry humor in discussing the do’s and don’ts of legal
style, to wit:
And/or. “Banish from your working vocabulary this ‘much condemned
conjunctive-disjunctive crutch of sloppy thinkers.’”
per. “Help stamp out his unrefined bit of legaldegook and commercialese.”
Commence. “Begin or start–do not commence.”
Deem. “Often unnecessary, and usually stilted. Try to avoid it–that is, deem it to
be undesirable in your writing.”
please find. “The phrase is swollen deadwood in lawyers’ correspondence.”
and when. “Use whichever one you mean, but not both.”
deserts. “So spelled, but trite.”
adj. “The most baneful word in legaldegook.”
n. “A sorry substitute for a pronoun.”
nothing like a good laugh (or at least a good chuckle) to get your
attention–except perhaps a quiz. So to keep you on your toes, here goes. Choose the correct word or phrase:
The above-mentioned / These deeds were misfiled.
court absolved the defendant of / from financial liability and from
/ of any wrongdoing.
The aforementioned / This decision aggravated / annoyed the
4. Lenders have agreed to make certain loans, advances, extensions of credit
or / and/or other financial accommodations to or for the benefit of
per your instructions / As you instructed, we have served notice.
witness told blatant / flagrant lies to the grand jury to cover up for
his flagrant / blatant breach of trust.
will commence / begin our investigation tomorrow.
consider / deem the cost excessive.
judge will doubtlessly / doubtless reprimand the jury.
will effectuate / effect the new policies in time to prevent additional
Enclosed please find / I have enclosed three copies of the contract for
If / If and when we reach an agreement, we will reopen the plant.
our judgement / judgment, it would be unwise to petition the court
at this juncture / at this time.
murderer received his just deserts / just desserts.
15. Although said / the defendant’s wife left the premises before the
police arrived, same / she turned herself in two hours later.
ruling supersedes / supercedes all others, thereby rendering moot the
allegation of willful / wilful / willfull negligence.
is simple: The correct choices are the first ones in the even-numbered
sentences and the second ones in the odd-numbered sentences.
addition to these commonly misused words and expressions, Garner identifies
certain “vogue words” – such as bottom line, hopefully, liability-wise,
state of the art, and worst case scenario – that “make you sound
like an unthinking writer of ready-made phrases.”
advice regarding these words and phrases: “Have done with them all.”
First published January 16, 1998
Lawyers are experts on
By Stephen Wilbers
the first thing you think about when you hear the word “lawyers”?
Jokes? Litigation? The incomprehensibility of legal writing?
the abuse we enjoy heaping on them, lawyers have a great deal to teach us
about effective writing. You may be surprised to find the words “lawyers” and
“effective writing” in the same sentence, but it’s true: When they’re not
trying to pull the wool over our eyes with their arcane language or tormenting
us with their convoluted sentence structure, they display a firm grasp of the
techniques of persuasive writing.
anyone skilled in the art of argumentation, they are particularly adept at
weighting evidence in their favor. Here’s how they do it:
sympathy for their subjects.
As we saw
in the trial of Terry Nichols, the more you portray someone as a fully
developed human being with positive attributes and meaningful relationships
with other people, the harder it is for a jury to draw negative conclusions
about that person’s actions.
Shapo, Marilyn Walter, and Elizabeth Fajans point out in Writing and
Analysis in the Law, you can portray someone as “deserving of fair
treatment” simply by referring to that person in a dignified way – as “Mr.
Gonzales” rather than as “Gonzales” or “Petitioner,” for example.
facts that support their case.
focus on favorable facts. If their client misses successive mortgage payments
and the bank begins proceedings to foreclose, for example, they portray their
client as a responsible person who in the past has always made mortgage
payments on time, who acted in good faith by notifying the bank about a
temporary delay, who made partial payments, etc.
instinctively select facts that support our side of the argument. But lawyers
are particularly adept at using direct quotes and at identifying and
highlighting just the right details to create special emphasis. If it doesn’t
fit, for example, you must acquit.
opposing arguments without giving them undue emphasis.
know how to use paragraph structure to their advantage. They advance their
own arguments in the beginnings and endings of paragraphs or sections, where
those arguments will have natural prominence and are more likely to be
remembered. They address opposing arguments in the middles of paragraphs or
sections, where they will have less prominence and are less likely to be
the passive voice to de-emphasize facts that undermine their case.
your programmed grammar checker would have you believe that using the passive
voice is an indictable felony, lawyers know better. They appreciate the value
of passive constructions in downplaying the connection between questionable
actions and their clients.
defending a client against allegations of illegally soliciting campaign
contributions, for example, they are more likely to write “Calls were made
from the White House” than “The president called prospective donors from the
other parties as the subjects of sentences conveying unfavorable facts.
distance between their clients and damaging information, lawyers also use
other parties as the subjects of their sentences. Just as a child is more
likely to say “The table tipped over and the lamp broke” than “I knocked the
table over and broke the lamp,” defense attorneys are more likely to say
“Police found a 9mm pistol belonging to Mr. Smith” than “Mr. Smith dropped his
9mm pistol near the body.”
main clauses and subordinate clauses to control emphasis.
good writer knows, information placed in main clauses receives relatively more
emphasis; information placed in subordinate clauses receives relatively less
illustrate this technique, Shapo et al. offer these sentences: “Although Paley is an excellent lawyer, his memory is poor”; “Although Paley’s memory is
poor, he is an excellent lawyer.”
a matter of emphasis.
First published September 8, 1995
William Kunstler’s last will and testament
By Stephen Wilbers
on your point of view, William Kunstler was a relentless crusader for social
justice or a self-serving seeker of publicity.
died on September 4, 1995, Harvard Law School Professor Alan Dershowitz, who
represented Kunstler when he was cited for contempt of court while defending
the Chicago Seven, said, “I have great compassion for God now because I think
Bill is going to start filing lawsuits as soon as he gets to heaven.”
just imagine William Kunstler filing lawsuits in heaven? For God’s sake,
let’s hope he writes his briefs in plain English rather than in legalese. There are limits, I suspect, even to divine patience.
think Kunstler will go for plain English.
have had a penchant for hyperbole and high drama, but he also had a rare
command of language. From his defense of the Chicago Seven to his arguments
for dropping charges against Qubilah Shabazz, Kunstler could frame an issue in
a broader social context with an incisiveness few people can muster.
about his last will and testament? I’ll bet he insisted on straightforward
English rather than that bizarre, convoluted language so many attorneys are
what Kunstler would have done if he had been presented with a draft copy that
read, “I give and bequeath my clothing, jewelry, ornaments, automobile or
automobiles, household furniture and furnishings, books and personal effects
of every kind and nature used about my person or home to my said wife if she
survives me.” I’ll bet he would have changed it to “I bequeath all my
possessions to my wife.”
And if he
had seen a paragraph-long sentence that read, “Notwithstanding the above
language of the previous article, if there should be in existence at my death
a written statement or list written or signed by me purporting to dispose of
items of personal property of mine then, in that event, such written statement
or list shall take priority over the other dispositions of the previous
article,” I’ll bet he would have changed it to “The only exception to this
would be if I have left written instructions for disposing of certain items of
personal property in some other fashion.”
would have gagged if he had seen something like “I intend that the gift made
by this Article shall qualify for said marital deduction and I direct that my
estate be administered, that the powers of my personal representative and
trustee be exercised, that this will be construed and that all questions
pertaining to this will be resolved in a manner consistent with that
just see him, in a few deft strokes of his pen, changing that gibberish to “I
direct my personal representative and trustee to administer my estate so that
the gift made by this Article will qualify for the marital deduction.”
surely he would have rejected a mind-boggling sentence such as “Except as may
be otherwise expressly directed or required by this will and in extension but
not in limitation of the powers provided by applicable law, I hereby grant to
the trustee as to any properties, real, personal, or mixed, at any time
comprising a part of any trust hereunder and without the necessity of notice
to or license or approval of any court of person, full power and authority
during the term of such trust in my trustee’s continuing sole discretion,” and
replaced it with “I hereby grant to the trustee full power and authority to
administer the trust.”
rest in peace, William Kunstler.
your colleagues use language we mortals can understand.
First published March 11, 1994
The gentle art of writing to stupefy
By Stephen Wilbers
like a harmless request.
presenting a writing workshop at a major Twin Cities foundation (hereinafter
referred to as “The XYZ Foundation”) when one of the staff members asked me to
critique a contract written by an independent contractor.
said. Happy to take a look.
realized what was happening, I was hopelessly lost in a sentence that seemed to
have come from an alien planet, an infinite loop with neither beginning nor end:
desires to provide services to The XYZ Foundation and The XYZ Foundation desires
that Contractor provide such services to The XYZ Foundation upon all of the
terms and conditions hereinafter set forth.”
What is the
meaning of this strange language? I asked myself. Does it mean anything more
than “Contractor agrees to the following conditions”? Surely there is more to it
But it was
too late for rational thought. Already my eyes were glazing over, my head
falling forward, the drool running down my chin.
At the next
sentence I nearly lost consciousness: “NOW THEREFORE, in consideration of the
premises and the covenants hereinafter contained, the parties agree as follows.”
theoretically possible, I wondered, my head spinning like a top, for “premises”
to be “hereinafter contained”? Don’t “premises” come before and
“hereinafters” come after?
sentence gave me hope that I might survive this ordeal after all: “The duration
of this Agreement will be from April 1, 1994, the effective date of this
Agreement, until August 31, 1994, unless earlier terminated by either party,
with or without cause, upon 30 days’ prior written notice.”
was something I could comprehend: “30 days’ prior written notice.” But I lost
confidence when I noticed the word “prior.” Was “30 days’ prior written
notice” the same as “30 days’ written notice”?
not. Why would an author as skilled with language and nuance as this one
include the word “prior” if it had no meaning? It must be a trick!
lightheadedness was now accompanied by a desperate, sinking sensation in the pit
of my stomach. I counted the steps from my desk to the bathroom. Could I make
it in time?
At the next
sentence I began to groan audibly: “The XYZ Foundation shall retain all
property rights, title, and interest in any research, written products, computer
analysis or systems, or other information or documentation, regardless of the
method of retention or source, produced or developed by Contractor relating to
the services performed and for which Contractor is reimbursed.”
40 steps if I walked, 20 if I went at a dead run.
When I read
the next catalog of actions, I realized what the author was attempting: “The
terms of this Agreement may not be altered, enlarged, supplemented, abridged,
modified, nor any provisions waived except by an agreement in writing, signed by
methought, was a catalog more heroic than any in Homer’s Iliad and
Odyssey, more authentic than any in Virgil’s Aeneid, and more
dazzling than any in Milton’s Paradise Lost. This was an epic poem in
As my mind
drifted into a stupor, I dreamed of a story told by Richard Wydick in Plain
English for Lawyers. In 1596 an English chancellor was so exasperated by the
length of a 120-page document filed in his court that he had a hole cut through
the center of the document, ordered the author’s head stuffed through the hole,
and had him paraded for all to see at Westminster Hall.
jurisprudence. What I wouldn’t give to have been there.
First published December 11, 1992
Does anybody know why lawyers write
the way they do?
By Stephen Wilbers
lawyers write the way they do?
asked that question so many times that I decided to see if I could find out.
Here’s what I discovered.
University of Minnesota Law School bookstore I was astonished to find the same
theme in every book I picked up: “Good legal writing is simply good writing.”
Little Book on Legal Writing, Alan Dworsky advises, “Don’t imitate casebook
legalese when you write a memo or brief. Live lawyers don’t write like dead
judges.” In Plain English for Lawyers, Richard Wydick argues that “Legal
writing should not differ (without good reason) from ordinary, well-written
Furthermore, parts the table of contents in Shapo, Walter, and Fajans’
Writing and Analysis in the Law looked as if they could have been lifted
from any standard writing handbook: “Whenever Possible, Use Short, Concrete
Subjects; Keep Your Sentences Relatively Short (under 25 words); Maintain
Parallel Sentence Structure (Parallelism); Avoid Misplaced and Dangling
Modifiers; Eliminate Unnecessary Words.”
unnecessary words? I looked again at the cover to make certain I was
holding a book on legal writing. If this is how legal writing is being taught
these days, I wondered, why do lawyers write the way they do?
one of my lawyer friends and asked, “What gives?”
said, “law is like any other profession. Some people have had good training,
and others haven’t. Some write well, and others don’t.”
did her explanation make perfect sense, but it was rendered, I noted, in short,
easy-to-understand sentences that followed impeccable parallel structure. Needless to say, I was mightily impressed. But still I doubted that I had
uncovered the whole truth.
Then I read
in Charrow and Erhardt’s Clear & Effective Legal Writing that although
some of the unique characteristics of legal writing “reflect the complexity of
legal concepts and the nuances of the legal process,” other characteristics
survive only because of habit, including “overly long, complicated sentences,
intrusive phrases and clauses, redundant phrases, poorly organized sentences and
paragraphs, and a host of similar problems.”
Erhardt identified these causes:
Archaic constructions. “Certain aspects of legal language,” they noted, “have
evolved separately from the rest of the English language.” Other phrases and
clauses, such as “malice aforethought” and “revoking all wills and codicils by
me made,” come from “grammatical constructions that are no longer in general
Legal language comprises certain “words, phrases, or larger structures whose
meanings have been ‘stabilized’ through legal interpretation” and that “appear
to embody the power of the law.” Once the courts have interpreted these words
and phrases in a particular way, lawyers tend to play it safe and keep using the
same “frozen” language.
of French and Latin terms with English terms. This peculiar type of
redundancy evolved “as the use of French and Latin began to give way to English
in the courts.” Fearing that “some of the highly specialized meanings of the
legal vocabulary would be lost,” the lawyers of the time were reluctant to drop
the French and Latin as they began using English.
factors. The authors explained that “the ritualistic quality of some legal
discourse” is intended to underscore the power of the law. “A society needs
laws, and legal incantation may help persuade people to follow them.”
Erhardt’s conclusion: “There may be legal reasons (either because of precedent
or statute) for retaining many terms, but there are few valid legal reasons for
clinging to Latinisms (prima facie, supra); strings of synonyms (null and void;
any and all; rest, residue, and remainder); or archaic words and phrases (witnesseth,
With this, I
knew, my search had ended.
So from this
day henceforward I will acknowledge and confess, give, devise, remise, release,
forever discharge, and bequeath the aforesaid knowledge for the rest, residue,
and remainder of my days on this earth.
judicata et nolo contendere.