In the first chapter of Plain English for Lawyers (5th ed. 2005), Richard C. Wydick states simply the premise of his book: “Good legal writing should not differ, without good reason, from ordinary, well-written English.”
Bryan A. Garner makes the same point in The Elements of Legal Style (2nd ed. 2002): “Good legal writing is hardly more than literary English applied to the law.”
The movement toward the plain English, or plain language, style in legal writing began in the 1970s as an effort to make legal documents more accessible to the public. There were commercial benefits to reap as well. According to Wydick, banks, manufacturers and other businesses found that documents written in plain language could reduce costs and increase profits. “For example,” he says, “an auto maker’s clearly written warranty can help sell cars, and a lender’s clearly written loan agreement can reduce costly defaults and foreclosures.”
For lawyers, using plain English can help improve relations with clients and win cases. Your colleagues will appreciate the effort as well.
So what is plain language? Garner defines it as “the idiomatic and grammatical use of language that most effectively presents ideas to the reader.”
That is easy to say but hard to do. We can begin by making sure our writing is free of formal words, archaisms, and legal jargon. Clients will find the results of this approach less confusing and more penetrable. Judges overwhelmingly say they prefer it as well. This does not mean you should eschew true legal terms of art such as plaintiff, defendant, mandamus, or mens rea. Just stay away from “legaldegook”, as Garner calls it.
In the Bulletin, we have made this point before. But it well worth reviewing. To that end, here are some words and phrases to avoid, whether you are writing to the court, your client, the general public, or your colleagues:
Such and said–when used to mean “the very one just mentioned” and as such when used to mean “therefore”
It is perfectly fine to use such to mean “of this kind” or “of this type,” as in the sentence, “I don’t know where she got such an idea.” Likewise, there is nothing wrong with the phrase, “Because I said so.”
The problem lies with the way lawyers frequently use the words such and said. That is, in lieu of the, this, that, these, and those. This archaic use of such and said sounds stuffy and stilted. And it creates ambiguity. As Garner asks in The Winning Brief (3rd ed. 2014), when you write such property [or said property], do you mean “the [specific] property you just referred to” or “property of that type [in general]?”
Here’s a “before-and-after” example he uses to make the point:
Not this: In his motion for new trial, Plaintiff asserts that such motion is based on “newly discovered evidence.”
In that sentence, “such motion” probably refers to the plaintiff’s motion. But, because of the syntax, it could also refer to motions for new trial in general. If that’s the case, then the plaintiff has made only a partially true assertion, as a motion for a new trial may have other bases, such as jury misconduct.
Try this instead: McDuff bases his motion for new trial on “newly discovered evidence.”
Avoid using as such to mean therefore. As Garner points out, as such should always mean “as [the noun just mentioned]” and requires an antecedent. It is correct to write, “She is a lawyer. As such, she bills by the hour.” But it is not correct to write, “She writes legal briefs. As such, she bills by the hour.” Is she herself a legal brief? Whoops.
Here’s a before-and-after example Garner uses to illustrate the problem with using as such instead of therefore, hence, or accordingly:
Not this: Each case thus involves a question as to the obligations of a WYO insurer with respect to the adjustment of coverage for an existing policy holder. As such, federal standards govern and Mr. Macmillan is manifestly unqualified to offer testimony.
In that last sentence, what is such referring to? Each case? A question? The obligations? The adjustment? An existing policy holder? None of those makes sense. (And by the way, because that last sentence does not include a comma after the word govern, it is a run-on.)
Try this instead: Because each case involves a question about WYO insurer’s obligations in adjusting an existing policyholder’s coverage, federal standards govern. Hence, Macmillan is unqualified to testify.
Pursuant to
In Plain Language for Lawyers (1st ed. 1991), author Michèle M. Asprey calls pursuant to “the hallmark of legalese.” As she points out, nonlawyers write under or according to. We should do the same.
Garner describes pursuant to as “dangerously addictive” and instructs us to resist the urge to use it. “You’ll find it teeming in mediocre legal writing,” he says in The Winning Brief. “And you’ll search in vain for it in masterly legal writing. That probably says it all.”
Doesn’t “he was evicted by court order” sound better than “he was evicted pursuant to a court order?”
To the above-mentioned Court, to the Honorable Court, to the Honorable Judge, comes now
Don’t begin your briefs with formal, old-fashioned addresses to the court. They aren’t necessary, and they delay getting to the point. Likewise, there is no need to announce that your client is coming into court to make a motion or respond to one. Go straight to what the party is asking the court to do or is going to show and why.
Not this: TO THE ABOVE MENTIONED, HONORABLE COURT:
Comes now, John Smith, Plaintiff in the above styled and numbered cause, and files this his response, to Defendant’s Motion to Dismiss and will respectfully present unto the court as follows:
But this: The Court should not dismiss this case because Plaintiff John Smith filed his Answer on time.
Heretofore, wherefore, whereas, aforesaid, aforementioned, herewith, herein, hereinafter, therein, thereinafter, to wit, witnesseth, and the like
Even though our law school casebooks feature excerpts from court decisions rife with words like these, we should vigilantly beat them away from our own legal writing. As Wydick explains in Plain English, these musty, tired lawyerisms “give writing a legal smell, but [] carry little or no legal substance.” The meanings of these words can and should be expressed in ordinary English. Heretofore, for example, means “before now.” Go with the latter.
Wydick attributes the ongoing use of pointless, often confusing legalese to habit and the mistaken belief that these words are more precise than their plain language counterparts. He takes on the word aforementioned as an example—calling it the “useless” “big brother” of said (or such). Here’s the sentence he uses to make his point: “The 50-acre aforementioned plot shall be divided… .” If only one 50-acre plot has been discussed previously, then aforementioned is unnecessary. And if more than one 50-acre plot has been mentioned, then it is not clear which 50-acre plot the writer is referring to. If precision is needed, describe the particular plot in a way your reader will recognize, such as “the 50-acre plot at the northeast corner of Lovers Lane and Hillcrest Avenue.”
Hereinafter called or hereinafter referred to is never necessary. Here’s how Garner illustrates the point in The Elements of Legal Style:
Poor: Acme Fire & Casualty Company (hereinafter called “Acme”) moves that the court dismiss the action.
Better: Acme Fire & Casualty Company moves that the court dismiss the action. Acme submits that …
There is no need to enclose the word Acme in quotes and place it inside parentheses after the full name of the company. Any reader will immediately get the reference. And that should be our goal. Quick and easy comprehension is the aim of the plain English approach.