Nov 8, 2020

The Dangers of Bad Legal Writing Revisited

Bad legal writing revisitedFive years ago, I wrote a post called “The Dangers of Bad Legal Writing”. It must have struck a chord because it’s been read over 1,350 times.

In this two-part article, we’ll look at what’s happened in the intervening years. We’ll provide a guide to the most common writing issues and how to correct them. And, in Part 2, we’ll cover tools and technologies – some of them free – that can help.

Five Years Later

Has writing improved since our last post? In a word, “no”. The Conference Board surveys of hiring managers found that writing skills are still one of the biggest gaps in workplace readiness. And lawyers are no exception. Here are two examples:

  • In a patent dispute with JPMorgan Chase, the judge dismissed Pi-Net International’s appeal because the brief exceeded the court’s 14,000-word limit. The writers tried to conceal the fact by eliminating spaces between words and constructing their own acronyms. “It is so poorly explained that it is nearly incomprehensible,” the court said of the offending brief.
  • A U.S. District Court in Florida greatly reduced the plaintiff’s attorney fees when it found the lawyer’s memorandum did not reflect the preparation time claimed to have been invested in drafting it. The court noted it was full of spelling and grammatical errors and contained “conjecture and hyperbolic editorializations” that have no place in legal pleadings.

Top 5 Issues and Simple Solutions

  1. Brevity. Q: What to do when your brief isn’t brief? A: Refer to Strunk and White’s classic Elements of Style. “Vigorous writing is concise,” they say. “A sentence should contain no unnecessary words, a paragraph no unnecessary sentences.” Some of the key culprits: “square paragraphs”, parentheticals, and passive voice. For explanations of these and others, see “Moshes Law’s “Baker’s Dozen”.
  2. Transparency. Mark Herrmann, chief litigation counsel at Aon Corp, encourages lawyers to use plain English and clearly structured thoughts, short sentences and short words. “Once through, I should get it,” Herrmann says. “For judges, who are ferociously busy and trying to decide way too many cases … they shouldn’t have to fight their way through to it.” For an excellent primer, see the CBA’s 3-part series on Plain Language Legal Writing.
  3. Reuse. Do you start a new contract, letter, or court filing by copying and pasting from a prior document? That’s a potential recipe for disaster. Best case, you’ll forget to change a name or gender. Worst case, you’ll leave in content that’s counter to the intent of your document. There are tools to help you reuse content without errors. We’ll cover that in Part 2.
  4. Fit for purpose. There is no one-size-fits-all in legal writing. Know your audience. For legal professionals, legalese is fine; for all others, use plain language. Also, consider the purpose of your document. Informative brief? Avoid emotion. A collection letter? Use assertive language without the legalese padding.
  5. Spelling and grammar errors. Virtually every tool that requires typing includes spelling and grammar checkers. Email platforms, word processing, presentation platforms – they all highlight your errors. And there are more sophisticated tools and sources that will help you with these and writing style issues. We’ll cover those in Part 2.

The Takeaway

The quality of writing – inside and outside the legal sphere – still has room for improvement. And you can do your part. Start by understanding the Top 5 Issues and how to correct them. Use the guides and tools at your disposal. The payoffs will make it all worthwhile. You’ll keep judges happy, win cases, and attract more clients. 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.



Share This