Legal Research

More on Legal Writing

By Simon Fodden

Plain language — the written kind — has been of interest here on Slaw recently, with John Gregory’s post “Enforcing Plain Language” and Simon Chester’s post announcing the (October) Educaloi conference, “Telling the Law to the Public. Are There Better Ways?“. I’ve got a couple of things to offer here.

First, I thought readers might like to be reminded of The Legal Writing Institute and, particularly, its open access journal. (You should also have a look at volume one of their Monograph Series: The Art of Critiquing Written Work, which comprises 15 articles.)

There’s a pleasant surprise in the current issue: an article, “A Preliminary Exploration of the Elements of Expert Performance in Legal Writing” [PDF] by two former colleagues of mine, Erika Abner and Shelley Kierstead. After a thorough introduction to the matter of expertise and its acquisition, they discuss the results of a project in which fifteen senior Canadian lawyers (in three focus groups) talked about the legal writing of junior lawyers. The results are far too complex, of course, for me to summarize them adequately here, but this excerpt will give you an idea of the sorts of things the experts were concerned with:

? [T]he practitioners were able to describe seven product issues, including: grammar, organization and sequencing, road- mapping, verbosity (both legalese and excessive detail), analysis (including use of authority, attention to facts, identification of counter-arguments, bold conclusions), attention to client problem, and rhetorical issues (audience, purpose, and tone).

Sad to say, most of the criticisms were the same as those I had when I was teaching — sad, because law school isn’t succeeding in changing writing behaviour. The “case dump,” the fact that students don’t read books (how else “pier revue”?), failure to use the “point-first method,” inability to see that “facts” and “law” are intimately related — all these are still prevalent, apparently. And if I had to pick one of the authors’ conclusions as key, I’d choose the obvious:

Tackling increasingly sophisticated writing problems probably also requires institutional commitment to ongoing writing instruction throughout law school.

Second, I was struck today by the obvious (isn’t that usually what hits us?) point that plain language doesn’t just address the choice of words used to get a thought across but the choice of the thought as well. Let me illustrate by quoting what it was that caused my apperçu. At the bottom of my Visa bill this paragraph now appears:

If you make only the Minimum Payment each month, we estimate it will take 33 year(s) and 8 month(s) to fully repay the outstanding balance?

This causes an important “Aha” moment, as well as uproarious laughter. It doesn’t just get the point across, it reveals a point that, though a necessary implication of the 20% interest rate, had before now been concealed from those of us who are less than gifted in the math department. How to cope with shaving the truth will be more of a problem, of course, when it comes to contracts than when legislation is concerned, because superior information has always been used as a means of securing a better bargain in the market place. This is the “Aha, now I’ve got you, you son of a bitch” approach to contracts (ANIGYYSOB works less well where repeat business is concerned) and also the fairly universal approach to contracts of adhesion, such as those proposed by telecommunications companies, for instance.

It’s also the case that spelling out the implications of an arrangement is no easy matter, quite apart from questions of information advantage. What exactly is the baseline understanding upon which our plain language arrangements can be built? Assume that a contracting party is from Mars, and the market grinds to a halt as we go on at length to explain what a fork is. Etc. (What about appointing a “reasonable person” whose job it is to respond to questions and, so, to calibrate this baseline? Mind you, imagine if Yogi Berra had been given the job: “When you come to a fork in the road, take it.“)

So, obvious though it may be, and whether as a result of sharpness or mis-calibration, plain language needs a “full language” partner, if it’s to make the kind of sense that’s hoped for.

Full post as published by Slaw.ca on November 22, 2010 (boomark / email).