March 4, 2002

Ohio Lawyers Weekly

GUEST ARTICLE

The Legal Writer

By Judge Mark P. Painter

Some legal writing texts start out by explaining how legal writing is different from other writing. But it should not be. While certain documents — complaints, briefs, deeds — may have a standard form, their content should be in plain English.

Most legal writing is atrocious. Fred Rodell, Dean of Yale Law School before most of us were born, had it right when he said, "There are two things wrong with most legal writing. One is style. The other is content." This was in a fascinating article, Goodbye to Law Reviews, which should be assigned reading for all law students.

Where did we learn to write? Grammar school is certainly not that any more, but we learned rudimentary rules in grade school. Unfortunately, some of those "rules" were not rules at all. The grade-school teacher who told you not to start a sentence with and really meant not to write "I have a dog. And a cat. And a parakeet." As we will discuss in future columns, the use of "and" and "but" to begin a sentence is one mark of good writing.

Some of us honed our writing skills in high school and college. We learned from reading examples of good literature, and other writing — from journalistic to persuasive. Unless we fell victim to academic jargon illiteracy (a subject for a separate treatise), we usually got better with practice. Though we may still have been handicapped by some false rules from grade school, some of us became at least passable writers before we entered law school. Then the roof fell in.

A Haystack Of Verbiage

One problem in law school is that we read older cases by dead judges. Of course, Cardozo, Holmes and Jackson were great writers, but most judges are not, especially the older ones. I pulled out a random Ohio Supreme Court case from 1946, and quote the first paragraph:

"The appellant complains that the trial court erred in holding that an attorney at law representing a loan association in the distribution of the proceeds of a loan to be made by such association could refuse to answer questions concerning such distribution on the ground that to answer would disclose a confidential communication to his client; and that the trial court erred in holding that a garnishee ordered by the court to appear for examination as to his indebtedness to the judgment debtor was the witness of the judgment creditor and could not be called for cross-examination by the latter."

This is not a terrible example, it is just random. But it could be translated in to plain English fairly easily. Restated, it could be two sentences, and contain about half of its now 100 words.

It is not just that many judges write badly. Cases are selected for casebooks not because they are examples of good writing, or even clarity, but because they illustrate the precepts of law in that course. Even when edited, many of these cases are wordy, redundant and confusing. Perhaps there is value for the law student in this situation — it provides training on how to pick out the needle of law from the haystack of verbiage. But reading all this Lawspeak and generally bad writing causes the student to internalize it. If judges write this way, then it is the language of the profession to be emulated.

Indecipherable Writings

The problem is compounded exponentially by law students' encounter with other legal writing — leases, contracts, pleadings — some hardly changed from Norman times. Of course, there is also the red meat of the law, statutes. For sheer unfathomability, statutes are probably the champions. An Ohio example:

"Subject to division (B)(4) of this section, if, within six years of the offense, the offender has been convicted of or pleaded guilty to one violation of division (A) or (B) of section 4511.19 of the Revised Code, a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, a municipal ordinance relating to operating a motor vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section, section 2903.06 or 2903.08 of the Revised Code, former section 2903.07 of the Revised Code, or a municipal ordinance that is substantially similar to former section 2903.07 of the Revised Code in a case in which the jury or judge found that the offender was under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or a statute of the United States or of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code, the judge shall suspend the offender's driver's or commercial driver's license or permit or nonresident operating privilege for not less than one year nor more than five years."

Again, just an average example of drafting clarity. As we will see in later columns, a 239-word sentence is unreadable, which should come as no news.

If the exposure to indecipherable writing in law school weren't bad enough, then the young lawyer ventures forth into the "real world" of law practice. I once made the mistake of teaching legal drafting, and one of my students took what I said to heart. She was working part-time for a big firm. She wrote a memorandum for a senior partner. It was returned with "make it more lawyerlike," i.e., more unreadable.

Old ideas die hard. Legal writing has been bad for a long time. For an entertaining and educational explanation, read Peter Tiersma's book, Legal Language, which give a fascinating history of how we got to the present state.

As lawyers, what we do most is write. Lincoln said that lawyers' time and advice are our stock in trade, but we express the advice in words. And we use our time in drafting, in communicating mostly by the written word. Sometimes, though, we fail to remember that the first object of writing is to communicate.

Writing is a skill that can be learned — not that any of us necessarily can learn to be a Cardozo or a Holmes — but we can substantially improve our communication by learning a few skills, a few tricks, and unlearning some "rules" that get in the way of good writing.

---

Judge Mark P. Painter has served on Ohio’s 1st District Court of Appeals since 1995, after 13 years on Hamilton County Municipal Court in Cincinnati. He is one of the most-published judges in Ohio history, with more than 270 of his decisions published nationally. He is the author of “Ohio DUI Law, Ohio Appellate Practice,” and “The Legal Writer, 2nd Edition: 40 Rules for the Art of Legal Writing.” Painter is an adjunct professor at the University of Cincinnati College of Law, and has given more than 100 seminars to judges and lawyers.