Legal Writing Pitfalls and How to Avoid Them

COMES NOW, PLAINTIFF in the hereinabove case, by and through the undersigned counsel of record, and WHEREFORE, PREMISES CONSIDERED, files the aforementioned MOTION TO …

Yikes. Between the case caption, the title, and the procedural throat-clearing of the introductory paragraph, the readers of a legal motion usually spend the first-page thinking, “Get to the point!” Bryan Garner, editor-in-chief of Black’s Law Dictionary and longtime proponent of using plain English in legal writing, refers to this as “filibustering boilerplate” and “time-wasting guff.”[i] It’s true that many lawyers enjoy the pomp and circumstance of formal legal writing. But a good writer can make a pleading, motion, or brief both elegant and readable—and in the process, make it more persuasive.

You likely already know the big rules of formal legal writing: Don’t use contractions. Avoid cliches like the plague. Passive voice is not to be used. Bail on using colloquial language. But what about the more subtle ways we can make our writing clearer, more persuasive, and more readable? The easy answer is to write every sentence with your reader in mind.

Latin Phrases: Term of Art or Jabbering Jargon?

Latin words such as inter alia, sua sponte, vel non, or sub judice can make a legal writer feel more “lawyerly” at the expense of the reader’s understanding of the subject. To increase readability, use plain English: among other things, of one’s own accord, or not, and under judicial consideration are all perfectly acceptable phrases to use in a legal pleading. There is a time and a place to exercise your Latin vocabulary. Explaining a complicated legal concept to a client is not one of them.

This isn’t a hard-and-fast rule. Sometimes, a Latin phrase is so ubiquitous or naturally succinct that it becomes a “term of art.” A term of art is a word or phrase that has a specialized meaning in a particular field or profession—here, in the legal field. Using a short Latin term with a settled definition is sometimes better than explaining the same legal concept in a paragraph. One example is the term per stirpes, which is a Latin phrase directly translating to “by the branch.” A lawyer drafting a will for a client can write “Everything to my children, but if one of them dies, then their share that they would have inherited from me goes to their children.” That same lawyer can convey the same message by writing “Everything to my children per stirpes.” When counseling their client, that attorney will want to explain exactly what the term means, of course. But when that client’s will gets probated, the court will have little confusion deciphering the client’s intent to have her children inherit equally “by the branch.”

It’s All Greek [or Romantic or Anglo-Saxon] to Me

Many legal concepts come in pairs. Goods and chattels. Cease and desist. Will and testament. But these legal doublets can be awfully duplicative, especially when they turn into strings of words like “grant, assign, convey, mortgage, pledge, hypothecate, and transfer.” Don’t these words mean the same thing? If so, why would we use both or all of them when one will do?

The answer stems in part from the history of the legal system of England, which greatly influenced that of its various colonies and territories. When the Romans invaded the British Isles, they brought with them the Roman system of law—and, naturally, their language. When Old French evolved into Western Europe’s language of commerce or lingua franca, it retained various Latin words and phrases. After the medieval period, when English started to replace French as the language of the law, legal writers would have to pick between the appropriate English term or its French counterpart. To reduce confusion for readers who only spoke one language or the other, many legal writers in the 1400s and onward would simply pick both—one Romance word and one Anglo-Saxon word.[ii]

For whatever reason, we seem to have kept this tradition alive today, even though English has become the lingua franca of the U.S. legal system. When you see a string of similar-looking words in your writing, take the time to consider whether the words are all necessary. Are they synonyms? Maybe pick one. Are their meanings slightly different? Figure out which word(s) will most succinctly make your point. Which would be a more powerful way to convey your message?

Write Really Clearly Well

Many legal writing professors have taken to heart Stephen King’s opinion that “the adverb is not your friend.”[iii] But perhaps adverbs aren’t the real enemy in legal writing. Court documents often use adverbs in legally recognized standards, like “clearly erroneous” or “reasonably relied.” The real trouble may arise when adverbs, especially those ending in -ly, are employed as intensifiers in an attempt to spice up a sentence. Used judiciously, a well-placed intensifier can strengthen a sentence. But overuse of intensifiers like clearly and very can turn out, well, clearly very poorly for writers—especially for persuasive writers. In fact, many legal writers agree that intensifiers tend to make an argument less persuasive.[iv] One good way to make your document more persuasive is to take out the intensifiers and see how the sentence stands on its own two legs. If the sentence isn’t persuasive without the added pizzaz of intensifiers, chances are the argument is just plain unpersuasive.

Final Words: Don’t Get Too Comfortable…

Much of this advice boils down to increasing readability, which in turn can make writing more persuasive. However, you don’t want the pendulum to swing too far the other way and write like you’re sending an email to a pen pal.

You can write in formal English without being boring or sacrificing readability. The key is to craft your sentences carefully and with the reader in mind. Recognize that your reader—whether they are Supreme Court justices or clients—must be able to read and understand the message you are conveying before they can agree with your position.

Written by:

Julie Matsen
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500

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[i] https://www.abajournal.com/magazine/article/litigation_deep_issue_motions

[ii] https://www.michbar.org/file/barjournal/article/documents/pdf4article3706.pdf

[iii] http://sites.utexas.edu/legalwriting/2021/05/11/clearly-you-should-really-avoid-adverbs/, quoting from On Writing: A Memoir of the Craft by Stephen King