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The Dangers of Bad Legal Writing

October 14, 2015
by Korbitec
Comments Off on The Dangers of Bad Legal Writing

Bad Legal WritingWhat you write and how you write can have a range of consequences for you and your firm. In this post, we examine the pitfalls of poor legal writing and provide some suggestions and sources that can help ensure your legal documents boost your firm’s reputation and bottom line.

When Legal Writing Spells Disaster

Spelling and grammar errors in a legal document can have unexpected, and sometimes dire, consequences. If you’re lucky, they simply add humour to an otherwise dull day. In worst case scenarios, they can result in administrative dismissal or financial loss.

Consider this example from Legal Assistant Today. An attorney in Minnesota was publicly reprimanded for unprofessional conduct and ordered to pay court costs after repeatedly filing documents the court considered “unintelligible” because they contained numerous spelling and typographical errors. The judge wrote in his opinion, “Public confidence in the legal system is shaken … when a lawyer’s correspondence and legal documents are so filled with [these] errors that they are virtually incomprehensible.”

Champions of Plain English

Writing style and word choice can be problematic, too. Clients, judges, and lawyers all value transparent legal writing that’s easily comprehensible. No one wants to proofread, edit, or interpret legalspeak that clouds the meaning or intent of a contract or court document.

Although the problems of bad legal writing are as old as the profession, advocates for plain English writing only began to emerge in the middle of the 19th century, through the voices of a small minority.

A real breakthrough came with the publication in 1963 of David Melinkoff’s The Language of the Law. In it, he proposed that legal language should mirror common speech, unless there are good reasons for a difference. Many other books on the topic have been published since (see References), establishing the standards for good legal writing.

The Benefits of Good Legal Writing

Good legal writing is not just a matter of style; it’s about producing tangible benefits for you, your firm, and your clients. In the first installment of a three-part series on Plain Language Legal Writing, the Canadian Bar Association highlights several positive outcomes from good legal writing. Here’s a summary:

Client Confidence. Clients want to understand what the documents you ask them to sign actually mean. When the writing is clear, they gain confidence in themselves and in your advice. When they understand their rights and obligations, they can make informed decisions that avoid complication down the line.

Time and cost savings. When legal writing is simple and clear you save time writing, proofreading, and editing documents, whether it’s you reviewing the work of junior lawyers, or your legal assistants reviewing your own work.

Reputation. Clear writing is evidence of clear thinking, and it raises your stature in the market. Gaining a reputation for transparency helps attract new clients and provides your firm with a means to differentiate itself in a crowded and competitive market.

Technology: Friend or Foe?

Technology can be a huge help in improving your legal writing, but beware of the dangers of ceding total control to your software. Spell checkers, for example, are notorious for skipping over text that is spelled correctly. Here’s an extreme example: “Eye halve a spell checker that marks miss spellings in my documents, so ewe can be shore their free of mist aches.”

Search and replace can have humorous and embarrassing consequences, too. Most infamous is the case of the sea sponge. In an opening brief to San Francisco’s 1st District Court of Appeal, Santa Cruz solo practitioner Arthur Dudley’s search and replace inserted the words sea sponge instead of the legal term sua sponte. This left the justices reading statements such as: “It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense.” Dudley corrected the error in his reply brief, but the damage was done. He had weakened his credibility in the eyes of the court and made him the butt of many of his colleagues’ jokes.

Like Dudley’s infamous search-and-replace gaffe, cut and paste can also result in the endless replication of bad or out-of-context writing. For a more sophisticated and bulletproof application of technology, document assembly software can help ensure consistency and accuracy in your legal documents. With these systems, only standardized and vetted text is included your documents, and inserted based on variables that you specify, ensuring that the specifics of the document always fit the situation. (For more on the topic, see our previous post, “Why Give Document Assembly a Second Look.”)

Whatever route you choose to take, be assured that good legal writing will result in happier clients, time and money saved, and a stellar reputation for you and your firm.

Michael Sauber Head Shot - smallAbout Michael Sauber
Michael Sauber leads the marketing program for Korbitec, producer of Automated Civil Litigation Software (ACL). He has worked with document production technologies and professional services for over 30 years and is a frequent blogger on these topics.

 

 

More Reading

Hall Benson, Christy. ‘The Consequences of Bad Legal Writing’. Legal Assistant Today, March/April 2007.
Stephens, Cheryl M. ‘Plain Language Legal Writing: Part I – Writing as a Process’. CBA PracticeLink, 2012.
Salzwedel, Matthew. ‘Face IT – Bad Legal Writing Wastes Money’. Lawyerist, February 2013.

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