Oregon State Bar Bulletin MAY 2014
The Legal Writer
Write As You Speak, Unless...
By Elizabeth Ruiz Frost
One of the basic canons of the Plain English movement is that lawyers should write as they speak. The movement’s proponents suggest that lawyers tend to bog down legal writing with technical jargon and legalese that lay clients find inaccessible. According to this theory, we wouldn’t say heretofore in a conversation, so we shouldn’t write it either.
I buy the basic premise of the Plain English movement. Lawyers sometimes write in obtuse terms. That’s understandable. Law students spend three years decoding labyrinthine judicial opinions and statutes. Those sources are filled with archaic language. Then once out of school, consistency and efficiency compel lawyers to replicate the bad writing habits in decades-old forms of contracts and pleadings. Whether consciously or not, the grandiose language of our legal predecessors seeps in and clouds today’s communication. That’s not good. And I get that.
Here’s the catch: spoken English ain’t so good these days, so should we really write as we speak? Sometimes we speak too casually or in cliché. Therefore, the Plain English rule might need some refining. I propose a middle ground: let’s write as we speak, kind of. We can call it Plainish English.
As a practicing lawyer, I don’t recall writing or receiving any emails from other lawyers loaded with high-fallutin’ jargon like whereinbefore and thusly. But I often received emails that looked something like this:
There’s a lot of hair on this transaction, but at the end of the day, this could be a game-changer for us. If we’re going to boil this sea, we’ll have to ratchet up and plough through. I’m going to take a deep dive on this issue, so put a pin in that for now until I can circle back. When we talk, I’ll give you the 30,000-foot view from our side. Then your team can drill down internally and revert back. After that, I hope we can start moving forward on some of the bigger action items. In the meantime, I’m going to be out of pocket so why don’t you bird-dog the financials? I’ll ping you when pencils are up for the rest of your team.
So maybe that’s an exaggeration, but you get the point. If it isn’t appropriate to ask a client to “please execute the hereinbefore referenced document attached hereto” (and it shouldn’t be), or to instruct her to “pls sign + return, thx” (and it definitely isn’t), then we shouldn’t request that our reader “revert back” either. Revert back? Revert back to what, exactly? Australopithecus? That hollow “business speak” doesn’t mean anything!
I’ll concede that this particular linguistic scourge seems to have infected only a couple channels of communication. I doubt lawyers are incorporating cliché business speak into briefs to the court. I haven’t seen this yet: “The plaintiff will circle back with the Court in 30 days.” And I suspect no lawyer has drafted a trust requiring a trustee to “bird-dog” bank accounts. And okay, cliché doesn’t pose the same risk of alienating the public that legal jargon does. But cliché nevertheless pervades conference calls and email. And because email has become lawyers’ primary method of communicating with each other and clients, we should care how it sounds.
As a writing tool, cliché can have an undesirable effect on a writer’s audience. First, cliché may simply cause a reader’s eyes to roll. The style is simple and predictable. As conversations and emails seem to merge into one incomprehensible block of sameness filled with the same tired expressions, the audience might stop paying attention. Second, cliché is imprecise. Most of the time, a writer will communicate more effectively by writing what she means than by couching her meaning in an idiom. Finally, cliché can seem inappropriately homespun. When I read an email like the one above, I picture Foghorn Leghorn pecking at the keyboard. While that is an adorable image, it’s not a particularly professional one. (But what if he’s wearing a suit?)
Of course, I am not the first to suggest that cliché is de rigueur. Long before me, George Orwell railed against cliché. In his 1946 essay, “Politics and the English Language,” Orwell advised writers to “never use a metaphor, simile or other figure of speech that you are used to seeing.” That may seem like easy talk for a journalist who devoted his life to crafting language, but it’s a worthy goal for lawyers nonetheless.
Writing in Colloquialisms
Colloquial word choice presents another problem in professional writing. We might use words and expressions in everyday conversation that we shouldn’t choose for legal writing. Sometimes those words are too casual. So once again, write as you speak, except when you speak in ways that you shouldn’t write. Right?
Here is an example of a colloquialism in legal writing. I recently read an emotional distress memo that read, “The plaintiff freaks out every time she hears screeching brakes.” We probably understand what the writer meant, but “freaks out” isn’t as appropriate in legal writing as something like “suffers panic attacks.” Perhaps this example is too stark. How about drunk versus intoxicated? Or kid versus child? Or cop versus police officer? No one will mistake your meaning in these examples, but they seem inappropriately casual for legal writing.
Striking the balance between plain English that’s accessible for lay people and language that’s overly casual and unprofessional can be difficult. Writers may not always know when a word crosses the line to become inappropriately colloquial. I wish there were a good test. Let me offer an imperfect one: could the term or phrase easily follow or precede the word “dude” (e.g., “dude, the plaintiff freaks out every time she hears screeching brakes” and “the cop seized his license, dude”)? If so, choose a less colloquial word.
Expressing oneself through cliché and colloquial terms is easy but lazy. Writing in cliché and colloquialisms is the linguistic equivalent to text message abbreviations. “Put a pin in it” reads like a J. “Freaks out” is like “ROFL.” All these expressions are autotext; no thought goes into them. Plain English shouldn’t be artificially fancy, but it can still be thoughtful and proper.
ABOUT THE AUTHOR
Elizabeth Ruiz Frost teaches legal research and writing and other courses at the University of Oregon School of Law.
An archive of The Legal Writer articles is available here.
© 2014 Elizabeth Ruiz Frost