By Iyana Arrington
Student, University of Baltimore School of Law
“[T]he beauty, the genius, is not to write a five-cent idea in a ten-dollar sentence. It’s to put a ten-dollar idea in a five-cent sentence.” Even though the law should be easily understood by the average person, the current scheme has rendered it inaccessible for many reasons, including lawyers’ fond use of lofty, complex, and often confusing language. Traditionally, the legal profession has used “legalese” in its writing. Merriam Webster’s Dictionary defines “legalese” as a specialized language of the legal profession. A few examples of “legalese” include words such as: aforementioned, whereas, and to wit. However, just as languages are taught and learned, “legalese” requires lawyerly expertise, which, when used, can result in difficulty communicating complex legal issues to non-lawyer audiences. Fortunately, in the last twenty years, there have been calls to move away from using legalese in legal writing and to embrace plain and clear English instead. Practitioners today should be mindful of this call.
When drafting legal memoranda, lawyers should consider that much of the language we use is specialized and can, fail to adequately convey information in a way that is understandable to others, which can render a document meaningless and confusing. Although this may seem like common sense, practitioners may have difficulties using this approach because their own legal writing education was burdened with historic jargon and archaic themes of subjectively -“good” legal writing. Whether to continue using traditional methods or to begin accepting more modern conventional standards is a common struggle and theme of the legal profession.
As a result of these competing views, there has been an a “Plain English Movement” in the last two decades, which focuses on debunking the antiquated structure of legal writing and concentrates on ensuring legal memoranda are drafted in a manner that is intelligible to “ordinary people.” For today’s law students, the legal writing curriculum emphasizes focusing on the clarity and accuracy of the text and challenges students’ assumptions of how legal writing should be presented based on what they see in judicial opinions from history.While the concept of plain English does involve using simple language and short phrasing, many scholars have noted that to excel in crafting this kind of legal writing, specialized skills beyond technical language are still necessary.
Some legal scholars have suggested that clearer legal writing is produced when there is a shift in focus toward the social perspective. This social perspective broadens the process of legal writing beyond the scope of the individual writer and urges practitioners to acknowledge simple methods for drafting that generate meaning and value. This departure from the use of legal formalities for the use of other mechanisms–e.g., “colloquialisms”– could be instrumental in generating meaning to certain legal pieces. The current generation of lawyers –including junior attorneys and law students – are encountering major changes in the legal practice. With the development of new technology that provide “editorial oversight,” legal documents have the potential to be clearer and better, not only in grammatical composition but in their “social and intellectual contexts” as well.
Although legal writing takes place within a complex institution, with its own conventions, the role that lawyers play in society as advocates displays the importance of making content that is accessible. By striving to use plain English, practitioners will create more effective documents for the field. This “reader-based” approach works to convey shared meanings and value between the writer and the reader and works to form actual “good” legal writing. As lawyers navigate courtrooms, judges, and juries, and interact with clients in a variety of settings, they must learn and apply these principles to reach this multitude of audiences.