During my first year of law school I was told of a new movement in legal writing. Apparently legal writing contained all sorts of legal jargon, redundancy, and a general lack of clarity. The movement is to fix this by writing things in ordinary English.

Writing instructors and the books they assigned cited tradition and access blocking (making things incomprehensible to non-lawyers) as the reasons for the poor writing, and they noted that these are things that futures lawyers can change. I entered my first summer job ready to simplify, clarify, and use ordinary English.

Before the summer was over, I had introduced legal documents to the world that certainly had words like “hereby” in them. This summer, rarely a day goes by that I don’t advocate for documents that use words like “hereinafter” or use sentences that are at the edge of grammatically correct (and in some cases beyond). Where did I go wrong?

I’d like to put forth a new theory on why legal writing is so bad. I think it has little to do with tradition or access blocking, but everything to do with negotiation. The tradition comes into play when the “standard form” document is drafted. Often, the form is based on an old form that was based on an even older form. That document comes to the lawyer for the other side. Is that lawyer going to send it back with new language correcting things that aren’t technically wrong? Of course not. That’s just the tip of the iceberg though. I’ve found that I actually make things more wrong in effort to minimize changes while still asking for a substantive change. My goal is to make it legally say what I want it to while making as few changes as possible. Asking for tons of changes is rarely a good negotiation strategy, and I think that the desire to keep changes to a minimum perpetuates the poor writing.

Legal memoranda and court opinions don’t suffer from the same negotiation restraint, but I haven’t found these to be a problem. New cases read quite smoothly. It’s the transactional writing (contracts) that is bad, and it’s this that can’t change as long as documents are being negotiated by the word (rather than by the idea).