Origins of the Legal Writing Wars: Constructing Sentences

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Peter M. Tiersma’s book Legal Language is a great history of how lawyers have written and why they write the way they do now. In this episode, we consider how Prof. Tiersma critically analyzes modern legal writing.

Length and complexity

Lawyers often get into disputes about what they think are grammar “rules” when in fact they are arguing about writing style. Tiersma writes:

Style relates to the fact that given any proposition that you wish to communicate, there are typically many alternative ways in which you can express the proposition in words. When we say that a person or group has a particular style, we generally mean that they tend to prefer one method of expression over the other possibilities.

When a commenter ripped one of my posts as being “larded with stilted turns of phrase and grammatical errors,” he was incorrect about the grammar part (a trained grammarian, without my prompting, reviewed my post and found only one questionable prepositional choice) but was certainly entitled to his opinion about my writing style. The problem with most legal writing isn’t its grammar, but its style. And perhaps the most obvious bad style choice lawyers make is writing long, complex sentences.

Why do lawyers love long sentences? Tiersma believes they believe that the more concepts one packs into one sentence, the more iron-clad they all become due to being in that one sentence.

Legal drafters seem to fear that if they place a condition on a rule in a separate sentence directly following the statement of the rule, some lawyer will later be free to argue that the condition does not apply.

I find this funny, as it strikes me as an absurd argument that asks for an absurd result. But when a comment in response to one of my posts insisted that the phrase prior agreements did not necessarily mean all prior agreements (after I removed the all from the phrase), I now see what Tiersma is describing.

Tiersma points out that some of this tendency toward long sentences is in response to specialized requirements. For example, an American patent appication must be one sentence. An extra period can be cause for rejection. A French Court, the Cour de Cassation, writes each order in one sentence. But whatever the historical reasons for long, complex sentences, they do not provide a justification for them.

Wordiness and redundancy

Lawyers use more words than needed. Lawyers prefer adverbial phrases (like at slow speed) instead of simple adverbs like slowly. They love to overuse prepositions and conjunctions, eschewing short, effective words like if, before, and after in favor of in the event that, prior to, or subsequent to. Other common usages are during the time that over during, until such time as instead of until, and in order to instead of to.

Again, a lot of this awful usage and style is rooted in the history we discussed in (all) prior posts. Why is a Will a Last Will and Testament? Would anyone sign a Second-to-last (or penultimate, for you wordsmiths) WIll and Testament? Doubtful. And Will and Testament is redundant. And simply labeling it last doesn’t make it last.

Conjoined phrases and lists

Legal writing is often rife with the over-use of and and or in conjoined phrases like any and all. Lists of words may be the worst offenders in making legal documents much longer than they need to be. These go way back, too. Tiersma quotes English writer Arthur Symonds, who in 1835 lampooned legal language by suggesting that a lawyer would take I give you that orange and turn it into

I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice pulp and pips, and all right and avantage therein, with full power to bite, cut, suck, and otherwise eat the same . . .

I see the modern version of this all the time in contacts, with language that provides one may not, for example,

write, edit, print, or publish, or cause to be written, edited, printed, or published, any other edition of the Work, whether revised, supplemented, corrected, enlarged, abridged, or otherwise . . .

You know what I’m talking about.

Shorter isn’t always better

Tiersma then points out that shorter is not always better. A statute that makes it illegal to knowingly sell an illegal substance to a minor is unclear. What does one need to know in order to violate the statute, that the substance is illegal, or that the buyer is a minor, or both? Two sentences would add a few words but make the law plain.

So, really, lousy legal writing is in the end about poor usage and style more than about length. Which makes improving it a greater challenge than simply looking for words to eliminate. But that’s not a bad place to start.

Next week: How precision is undermined from within.

(image: too much talk in the man’s head from Shutterstock)

  • Lucid

    I agree with most of your assertions, but balk at the will example. A will is more than just some pages affecting legal rights, it’s a physical product that lawyers sell whose value incorporates tangential concerns as well. The aesthetic qualities of seeing “Last Will And Testament” in stoic old English font set on 32 lb. ivory paper make it an easier sell to a client, and give the client more utility and pride in what they’ve purchased than they would receive with Times New Roman on Xerox standard paper, all at little additional cost. More importantly, the sense of formality and seriousness the fancypants will imbues–even if legally meaningless and stylistically stupid–may lead clients to consider more seriously the significance of the will and its relationship to their dreams and desires . Hopefully this seriousness affects their future actions impacting legal rights. Better to accept some verbiage and remember that our duties are to our clients and our firms, not Strunk & White.

  • Homunculus

    Statutes aren’t known for their artfulness, but the illegal substance example is probably fine. Potential vagueness is solved by a rule of construction which says knowingly applies to anything that can be known unless the statute says otherwise. This is probably codified somewhere else to save repeating it in every statute. Statutes can be poorly drafted for many reasons. This isn’t one of them.