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California Law Review Volume 66 | Issue 4 Article 3 7-31-1978 Plain English for Lawyers Richard C. Wydick Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview Part of the Legal Writing and Research Commons Recommended Citation Richard C. Wydick, Plain English for Lawyers, 66 Cal. L. Rev. 727 (1978). Available at: http://scholarship.law.berkeley.edu/californialawreview/vol66/iss4/3 Link to publisher version (DOI) http://dx.doi.org/doi:10.15779/Z38T44G This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu. Plain English for Lawyers Richard C. Wydickt We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcdne phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause within clause, glazing the eyes and numbing the minds of our readers. The result is a writing style that has, according to one critic, four outstanding characteristics. It is: "(1) wordy, (2) unclear, (3) pompous, and (4) dull."' Criticism of lawyers' writing is nothing new. In 1596 an English chancellor decided to make an example of a particularly prolix document filed in his court. The chancellor first ordered a hole cut through the center of the document, all 120 pages of it. Then he ordered that the person who wrote it should have his head stuffed through the hole, and the unfortunate fellow was led around to be exhibited to all those attending court at Westminster Hall.2 When the common law was transplanted to America, the writing style of the old English lawyers came with it. In 1817 Thomas Jefferson lamented that in drafting statutes his fellow lawyers were accustomed to "making every other word a 'said' or 'aforesaid,' and saying everything over two or three times, so that nobody but we of the craft can untwist the diction, and find out what it means. .... ,,3 In recent times criticism of lawyers' writing has taken on a new intensity. The popular press castigates lawyers for the "frustration, outrage, or despair" a consumer feels when trying to puzzle through an insurance policy or installment loan agreement.4 President Carter has t Acting Dean and Professor of Law, University of California, Davis. B.A. 1959, Wil- liams College; LL.B. 1962, Stanford University. The author wishes to thank Deena G. Peterson and Ronald R. McClain for their research on sexism in legal writing and to thank Ralph C. Taylor, John L. Vohs, Max Byrd, and Richard Haas for their critical comments on an early draft of this article. 1. D. MELLiNKOFF, THE LANGUAGE OF THE LAW 24 (1963). 2. Mylward v. Welden (Ch. 1596), reprintedin C. MONRo, ACrA CANCELLARIAE 692 (1847). 3. Letter to Joseph C. Cabell (September 9, 1817), reprintedin 17 WRrrINGS OF THOMAS JEFFERSON 417-18 (A. Bergh ed. 1907). 4. Nader, Gobbledygook, LADIES' HoME JOURNAL, Sept. 1977, at 68; see also TIME, Jan. 16, 1978, at 60; L.A. Times, Jan. 29, 1978, § I, at 2, col. 5; Wall St. J., Dec. 5, 1977, at 40, col. 1. CALIFORNIA LAW REVIEW [Vol. 66:727 ordered that new regulations of the federal executive agencies must be "written in plain English" that is "understandable to those who must comply" with them.' A recently enacted New York State statute requires consumer contracts to be written "in a clear and cogent manner using words with common and everyday meanings."' 6 Within the legal profession itself, the criticism has mounted. Attorney Ronald Goldfarb charges that, by writing as we do, we "unnecessarily mystify our work, baffle our clients, and alienate the public. We could change this, and we should."7 The need for change is magnified by innovations in the mechanics of lawyering. We now have word processing machines that can type old boilerplate at a thousand words per minute and computer research systems that can give us an instant concordance of all the outpourings of appellate courts, legislatures, and governmental agencies. Soon we may drown in our own bad prose. A well-known New York lawyer tells the young associates in his firm that good legal writing does not sound as though it had been written by a lawyer. In short, good legal writing is plain English. Here is an example of plain English, the statement of facts from the majority opinion in Palsgrafv. Long Island RailroadCo. ,8 written by Benjamin Cardozo: Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. What distinguishes Justice Cardozo's style from that found in most legal writing? Notice his economy of words. He does not say "despite thefact that the train was already moving"-he says "though the train was already moving." Notice his choice of words. There are no archaic lawyerly phrases, no misty abstractions, no hereinbefore's. No5. Exec. Order No. 12044, 43 Fed. Reg. 12,661 (1978). 6. N.Y. GEN. OBLIG. LAW § 5-701b (McKinney 1978). 7. Goldfarb, Lawyer Language, LITIGATION, Summer 1977, at 3; see also R. LEuLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE COURTS 42-52 (1976). 8. 248 N.Y. 339, 162 N.E. 99 (1928). 1978] PLAIN ENGLISH FOR LAWYERS tice his care in arranging words. There are no wide gaps between the subjects and their verbs or between the verbs and their objects, and there are no ambiguities to leave us wondering who did what to whom. Notice his use of verbs. Most of them are in simple form, and all but two are in the active voice. Notice the length and construction of his sentences. Most of them contain only one main thought, and they vary in length: the shortest is six words, and the longest is twenty-seven words. These and other elements of plain English style are discussed in this article. Readers are urged to work the exercises in Appendix A and to compare their work with the suggestions contained in Appendix B. I OMIT SURPLUS WORDS As a beginning lawyer, I was assigned to assist an older man, a business litigator. He hated verbosity. When I would bring him what I thought was a finished piece of writing, he would read it quietly and take out his pen. As I watched over his shoulder, he would strike out whole lines, turn clauses into phrases, and turn phrases into single words. One day at lunch I asked him how he did it. He shrugged and said: "It's not hard-just omit the surplus words." A. How to Spot Bad Construction In every English sentence are two kinds of words: working words and glue words. The working words carry the meaning of the sentence. In the preceding sentence the working words are these: working, words, carry, meaning, and sentence. The others are glue words: the, the, of, and the. The glue words do serve a purpose; they hold the working words together to form a proper English sentence. But when you find too many glue words, it is a sign that the sentence is badly constructed. A good sentence is like fine cabinetwork: the pieces are cut and shaped to fit together with scarcely any glue. When you find too many .glue words in a sentence, take it apart and reshape the pieces to fit tighter. Consider this example: A trial by jury was requested by the defendant. If the working words are circled the sentence looks like this: A ( ) by (]) was ( d by the (ddant. Five words in that nine word sentence are glue: a, by, was, by, and the. How can we say the same thing in a tighter sentence with less glue? First, move defendant to the front and make it the subject of the sen- CALIFONIA. LAW REVIEW [Vol. 66:727 tence. Second, use jury trial in place of trial by jury. The sentence would thus read: The defendant requested a jury trial. If the working words are circled, the rewritten sentence looks like this: The defnant r e a (1 Again there are four working words, but the glue words have been cut from five to two. The sentence means the same as the original, but it is tighter and one-third shorter. Here is another example: The ruling by the trial judge was prejudicial error for the reason that it cut off cross-examination with respect to issues which were vital. If the working words are circled, we have: The ( )by the wasprdcia for the G that it (E)()cross-examination with respect to s which were (1 In a sentence of twenty-four words, eleven carry the meaning and thirteen are glue. Note the string of words the ruling by the trialjudge. That tells us that it was the trial judge's ruling. Why not just say the trialIjudge's ruling? The same treatment will tighten up the words at the end of the sentence. Issues which were vital tells us they were vital issues. Why not say vital issues? Now note the phrase/or the reason that. Does it say any more than because? If not, we can use one word in place of four. Likewise, with respect to can be reduced to on. Rewritten, the sentence looks like this: The trial judge's ruling was prejudicial error because it cut off cross-examination on vital issues. Here it is with the working words circled: The Sross-exanaon) was reu c it on The revised sentence uses fifteen words in place of the original twentyfour, and eleven of the fifteen are working words. The sentence is both tighter and stronger than the original. Consider a third example, but this time use a pencil and paper to rewrite the sentence yourself. 19781 PLAIN ENGLISH FOR LAWYERS In many instances, insofar as the jurors are concerned, the jury instructions are not understandable because they are too poorly written. Does your sentence trim the phrase in many instances? Here the single word often will suffice. Does your sentence omit the phrase insofar as thejurorsare concerned? That adds bulk but no meaning. Finally, did you find a way to omit the clumsy because clause at the end of the sentence? Your rewritten sentence should look something like this: Often jury instructions are too poorly written for the jurors to understand. Here it is with the working words circled: Stru ons) ~for the to(ndtan. The rewritten sentence is nine words shorter than the original, and nine of its twelve words are working words. (See Exercise 1, Appendix A.) B. Avoid CompoundPrepositions Compound prepositions and their close cousins are a fertile source of surplus words. They use several words to do the work of one or two, and they suck the vital juices from your writing. You saw some examples in the last section. With respect to was used instead of on. Forthe reason that was used instead of because. Every time you see one of these pests on your page, swat it. Use a simple form instead. Here is a list of common ones: COMPOUND SIMPLE at that point in time then by means of by reason of by because of by virtue of for the purpose of for the reason that from the point of view of in accordance with by, under inasmuch as in connection with in favor of since with, about, concerning for in order to in relation to to to because from, for by, under about, concerning CALIFORNIA LAW REVIEW [Vol. 66:727 in terms of in the event that in the nature of on the basis of by, from prior to before subsequent to after with a view to to with reference to about, concerning with regard to about, concerning with respect to on, about (See Exercise 2, Appendix A.) C Trim Out Verbose Word Clusters Once you develop a dislike for surplus words, you will fmd many common word clusters that can be trimmed from your sentences with no loss of meaning. Consider this example: The fact that the defendant was young may have influenced the jury. What meaning does thefact that add? Why not say: The defendant's youth may have influenced the jury. Thefact that is almost always surplus. from these examples: VERBOSE the fact that she had died he was aware of the fact that despite the fact that because of the fact that See how it can be trimmed PLAIN her death he knew that although, even though because Likewise, the words case and instance spawn verbosity: VERBOSE in some instances the parties can in many cases you will find that was an instance in which the court discrimination claims are more frequent than was formerly the case injunctive relief is required in the case of PLAIN sometimes the parties can often you will find there the court discrimination claims are more frequent now intunctive relief is required whenc 1978] PLAIN ENGLISH FOR LAWYERS in the majority of instances the landowner has it is not the case that she wrote the letter usually the landowner has she did not write the letter Here are other examples of common word clusters you can eliminate with no loss of meaning: PLAIN VERBOSE during the time that for the period of in accordance with insofar as ... is concerned there is no doubt but that the question as to whether this is a topic that until such time as during, while for by, under (omit it entirely and start with the subject) doubtless, no doubt whether, the question whether this topic until (See Exercise 3, Appendix A.) D. How to Shorten Clauses andPhrases One remedy for rambling sentences is to cut clauses down to phrases. Here is an example: While the trial was in progress, the judge excluded photographers from the courtroom. The six word clause at the beginning can be cut to a three word phrase: During the trial, the judge excluded photographers from the courtroom. The words which, who, and that often signal an opportunity to reduce a clause to a phrase: CLAUSE PHRASE The question was designed to impeach the prosecution witness, who had been convicted of having committed a felony. The question was designed to impeach the prosecution witness, a convicted felon. The statute, which had been enacted after the Alyeska case, authorized the fee award. The statute, enacted after the A4lyeska case, authorized the fee award. The title search did not disclose the easement that had been granted six years before. The title search did not disclose the easement granted six years before. When. you see the words it is and there are, stop to see if you can replace a clause by a shorter construction: CALIFORNIA LAW REVIEW VERBOSE [Vol. 66:727 PLAIN There are three key paragraphs in the pretrial order. The pretrial order has three key paragraphs. It is possible for the court to take judicial notice of its own records. The court can take judicial notice of its own records. Despite the legislative history, there are doubts about the intent of Congress. Despite the legislative history, the intent of Congress is in doubt. Sometimes you can clean out surplus words by replacing a clause with an adjective or adverb: VERBOSE PLAIN The trial judge denied the defendant's motion, which asked for summary judgement. The trial judge denied the defendant's summary judgment motion. The plaintiff rejected the offer made by the defendant to settle the case for $10,000. The decree which was entered in January ordered payments to be made each month for child support. The plaintiff rejected the defendant's $10,000 settlement offer. The January decree ordered monthly child support payments. (See Exercise 4, Appendix A.) E. Do Not Use Redundant Legal Phrases Why do lawyers use the term null and void? According to the dictionary, either null or void by itself would do the job. But the lawyer's pen seems impelled to write null and void, as though driven by primordial instinct. An occasional lawyer, perhaps believing that null and void looks naked by itself, will write totally null and void, or perhaps totally null and void andofnofurtherforceor effect whatsoever. Null and void is a lawyer's tautology-a needless string of words with the same or nearly the same meaning. Here are other common examples: alter or change last will and testament cease and desist made and entered into confessed and acknowledged order and direct convey, transfer, and set over perform and discharge for and during the period rest, residue, and remainder force and effect save and except free and clear suffer or permit full and complete true and correct give, devise, and bequeath undertake and agree good and sufficient unless and until kind and character 1978] PLAIN ENGLISH FOR LA1YERS Lawyer's tautologies have ancient roots. Professor Mellinkoff explains9 that, at several points in history, the English and their lawyers had two languages to choose from: first, a choice between the language of the Celts and that of their Anglo-Saxon conquerors; later, a choice between English and Latin; and later still, a choice between English and French. Lawyers started using a word from each language, joined in a pair, to express a single meaning. (For example, free and clear comes from the Old Englishfreo and the Old French cler.) This redundant doubling was used sometimes for clarity, sometimes for emphasis, and sometimes just because it was the fashion. Doubling became traditional in legal languge and persisted long after any practical purpose was dead. Ask a modem lawyer why he or she uses a term like suffer or permit in a simple real estate lease. The first answer likely will be: "for precision." True, there is a small difference in meaning between suffer and its companion permit. But suffer in this sense is now rare in ordinary usage, andpermit would do the job if it were used alone. The lawyer might then tell you that suffer orpermit is better because it is a traditional legal term of art. Traditional it may be, but a term of art it is not. A term of art is a short expression that (a) conveys a fairly well-agreed meaning, and (b) saves the many words that would otherwise be needed to convey that meaning. Suffer orpermit fails to satisfy the second condition, and perhaps the first as well. The word hearsay is an example of a true term of art. First, its core meaning is fairly well-agreed in modem evidence law, although its meaning at the margin has always inspired scholarly debate.10 Second, hearsay enables a lawyer to use one word instead of many to say that a statement is being offered into evidence to prove that what it asserts is true, and that the statement is not one made by the declarant while testifying at the trial or hearing. Any word that can say all that deserves our praise and deference. But suffer orpermit does not. In truth, suffer orpermit probably found its way into that real estate lease because the lawyer was working from a form that had been used around the office for years. The author of the form, perhaps long dead, probably worked from some even older form that might, in turn, have been inspired by a formbook or some now defunct appellate case where the phrase was used but not examined. If you want your legal writing to have a musty, formbook smell, by all means use as many tautological phrases as you can find. If you D. MELLINKOFF, supra note 1, at 38-39, 121-22. Compare FED. R. EviD. 801(c) and CAL. EviD. CODE § 1200 (West 1966) with C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 246 (2d ed. E. Cleary 1972). 9. 10.