Skip to Content
  • Home
  • About the Bar
  • Mission
  • Forms
  • Sitemap
    • Member Directory
      Last Name:
      First Name:
      Bar Number:
      City:


    • Login
OSB Logo

Oregon State Bar Bulletin — MAY 2014



The Legal Writer

Plainish English:
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.

Cliché Writing

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.

What?!

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.

Conclusion

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


— return to top
— return to Table of Contents



  • For The Public

      Public Legal Information

    • Public Information Home
    • Legal Information Topics
    • Oregon Juror Guide
    • Submit Ethics Complaint

    • Getting Legal Help

    • Finding The Right Lawyer
    • Hiring A Lawyer
    • Lawyers Fees

    • Client Services

    • Client Assistance Office
    • Client Security Fund
    • Fee Dispute Resolution
    • Public Records Request
    • Locating Attorney Files

    • Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    • Volunteer Opportunities

    • Public Member Application
  • For Members

    OSB Login

    • Log In To OSB Site
    • Member Account Setup
    • Non-Member Account Setup
    • Reset Password

    OSB Resources

    • Attorney's Marketplace
    • Career Center
    • Events
    • Forms Library
    • Online Resources
    • OSB Group Listings
    • Performance Standards
    • Rules Regulations and Policies
    • Surveys and Research Reports
    • Unclaimed Client Funds
    • Voting Regions and By-City
      County Information

    Benefits for
    Oregon Lawyers

    • Log in to Fastcase™
    • – Overview
    • – Scheduled Webinars
    • – Inactive Member Subscriptions
    • No Cost Trust & Billing Software

    Legal Ethics

    • Legal Ethics Home
    • Find an Ethics Opinion
    • Bulletin Bar Counsel Archive

    Company Administrator

    • Company Administrator Home
    • Company Administrator FAQ
    • Authorization Form

    State Lawyers
    Assistance Committee

    • SLAC Info

    Volunteering

    • Volunteer Opportunities

    Court Information

    • Judicial Vacancies
    • Court Info | Calendars | Jury Info
    • Oregon Attorneys
      in Federal Court
    • Tribal Courts of Oregon

    OSB Publications

    • Bar Bulletin Magazine
    • – Bulletin Archive
    • – Legal Writer Archive
    • Capitol Insider
    • Disciplinary Board Reporter

    PLF Programs

    • (OAAP) Oregon Attorney
      Assistance Program
    • Practice Management Attorneys
    • Malpractice Coverage
  • CLE/Legal Publications

    CLE Seminars

    • CLE Seminars Home
    • Online Seminar Registration
    • General Info/FAQ

    My Account

    • My Content
    • My Events
    • Order History

    Legal Publications

    • Legal Publications Home
    • Log in to BarBooks®
    • BarBooks® FAQ
    • Online Bookstore
    • Legal Pubs Blog
  • Bar Programs

    Diversity & Inclusion

    • Diversity & Inclusion Home
    • Diversity Story Wall
    • D&I Programs
    • ACDI Roster
    • D&I Staff Contacts
    • D&I Links

    Legislative/Public Affairs

    • Legislative Home
    • Committee Contacts
    • Legislative Sessions
    • Staff Contacts
    • Useful Links

    Legal Services Program

    • LSP Home

    Oregon Law Foundation

    • OLF Home
    • Partners in Justice

    Fee Dispute Resolution

    • Fee Dispute Resolution Home

    Pro Bono

    • Pro Bono Home
    • Pro Bono Reporting
    • Volunteer Opportunities

    Lawyer Referral and Information Services

    • RIS Login
    • Summary of Referral and Information Services Programs
    • Lawyer Referral Service Info and Registration Forms
    • Modest Means Program Registration Forms
    • Military Assistance Panel Training Info and Registration Form
    • Problem Solvers Registration Form
    • Lawyer To Lawyer Registration Form

    (LRAP) Loan Repayment Assistance Program

    • LRAP Home
    • LRAP FAQ
    • LRAP Policies
  • Member Groups

    Sections

    • Section Info/Websites
    • Joining Sections
    • CLE Registration Services
    • Standard Section Bylaws (PDF)
    • Leadership Resources
    • Treasurers Tools

    Committees

    • Home
    • Leadership Resources
    • Professionalism Commission
    • Volunteer Opportunities

    House of Delegates

    • HOD Home
    • HOD Resources
    • Meetings
    • Rules (PDF)
    • Roster (PDF)
    • Staff Contacts

    Board of Governors

    • BOG Home
    • Meetings & Agendas
    • Members
    • Liaisons
    • Committees
    • Resources
    • Task Forces

    Oregon New Lawyers Division

    • ONLD Home
    • Law Students
    • Student Loan Repayment
    • Committees
    • Upcoming Events

    Task Forces and Special Committees

    • Task Forces Home

    Volunteer Bars

    • List/Contacts
    • Leadership Resources

    Volunteering

    • Volunteer Opportunities
  • Licensing/Compliance

    Admissions

    • Admissions Home
    • Alternative Admittance
    • Applicants for Admission
    • Admissions Forms
    • Past Bar Exam Results

    Supervised Practice Portfolio Examination

    • SPPE Home

    Licensed Paralegal Program

    • LP Home

    Lawyer Discipline

    • Discipline Home
    • Disciplinary Board Reporter
    • Disciplinary Boards
    • Client Assistance Office
    • (SPRB) State Professional Responsibility Board

    Membership Records

    • Address Changes
    • Good Standing Certificate
    • Request Discipline File Review

    MCLE

    • MCLE Home
    • Program Database
    • Forms
    • Rules (PDF)

    IOLTA Reporting

    • IOLTA Home
    • IOLTA FAQ

    Licensing Fees

    • Licensing Fee FAQ
    • Licensing Fee Payment

    Status Changes

    • Status Changes FAQ
    • Inactive Status Form
    • Retired Status Form
    • Active Pro Bono Status Form
    • Reinstatement Forms
    • Resignation Form A
    • Pending Reinstatements

    Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    Pro Hac Vice/Arbitration

    • Pro Hac Vice
    • Arbitration

    New Lawyer Mentoring Program

    • New Lawyer Mentoring Program Home

    Professional Liability Fund

    • Professional Liability
      Fund Website
For The Public

Public Information Home
Legal Information Topics
Oregon Juror Guide
Finding The Right Lawyer
Hiring A Lawyer
Lawyers Fees
Client Assistance Office
Public Records Request
Unlawful Practice of Law
Fee Dispute Resolution
Client Security Fund
Volunteer Opportunities
for the Public

For Members

BarBooks®
Bulletin Archive
Career Center
Fastcase™
Judicial Vacancies
Legal Ethics Opinions
OSB Group Listings
OSB Login
OSB Rules & Regs
SLAC Info
Surveys and Reports
Volunteer Opportunities

CLE/Legal Pubs

CLE Seminars Home
Legal Publications Home

Bar Programs

Diversity & Inclusion
Fee Arbitration/Mediation
Legal Services Program
Legislative/Public Affairs
Loan Repayment
Assistance Program

Oregon Law Foundation
Pro Bono

Member Groups

Board of Governors
Committees
House of Delegates
Volunteer Bars
Oregon New
Lawyers Division

OSB Sections
Professionalism
Commission

Volunteer Opportunities

About The Bar

About the Bar
ADA Notice
Contact Info
Copyright Notice
Directions to the Bar
Meeting Room Rentals
Mission Statement
OSB Job Opportunities
Privacy Policy
Staff Directory
Terms of Use

Licensing/Compliance

Admissions
Client Assistance Office
Client Security Fund
IOLTA Reporting
Lawyer Discipline
MCLE
Member Fee FAQ
New Lawyer
Mentoring Program

Professional Liability Fund
Status Changes

Oregon State Bar Center

Phone: (503) 620-0222
Toll-free in Oregon: (800) 452-8260
Facsimile: (503) 684-1366

Building Location:
16037 SW Upper Boones Ferry Road
Tigard, OR 97224

Mailing Address:
PO Box 231935
Tigard, OR 97281

Oregon State Bar location Map

Copyright ©1997 Oregon State Bar  ®All rights reserved | ADA Notice | Mission Statement | Privacy Policy | Terms of Use