We see a variety of law firm documents come through ProofreadNOW.com — marketing (client alerts, blog posts, attorney bios, practice area brochures, website copy), business development (RFP responses, pitches) and legal (briefs, pleadings). Some of the writing is excellent, and, well … some isn’t.
Obviously, legal writing is very different from marketing and business development writing in style and tone, but in assessing quality, we’re talking about readability — and that applies to all writing. If your readers struggle to understand what you’ve written, you’ve missed the point of writing in the first place — to communicate clearly.
Objections to obscure writing in legal materials have been around nearly as long as the texts themselves. Despite great strides by plain English proponents — who argue that writing should be easy to read, understand and use — jargon (“legalese”), 50-cent words, passive voice and redundancy continue to permeate a great deal of legal writing.
We get what attorneys are up against. They spend their three years of law school poring over Byzantine statutes and contracts and ancient case law that still informs the law as we know it today. They’re taught to cross every t, dot every i and proactively cover every angle to ensure their writing can’t possibly be interpreted in any way other than what they mean. So they learn to become very careful … and very wordy — not to mention that in drafting contracts, briefs or pleadings they often rely on templates that contain antiquated, stilted language.
But just because that’s the way things have always been done doesn’t mean it’s the best way. Advice abounds on how to improve your legal writing, perhaps none better than what Bryan Garner — lawyer, lexicographer, editor-in-chief of Black’s Law Dictionary — regularly dishes up on his LawProse blog.
Here, we highlight three common problems we see in law firm documents and offer tips on how to balance comprehensiveness with clarity.
1. Drop “It Has Been Held”
Consider the following passage:
Treating physicians are not generally subject to deposition in personal injury actions. It has been held that such a deposition will be allowed only where necessary to prove a fact unrelated to diagnosis and treatment.1 [35 words]
The text isn’t terribly complex, but it sure is wordy — and that can slow both reading and comprehension. What makes it drag? Four little words you’ve probably seen (and written) thousands of times: It has been held. What’s wrong with them? Three things:
- It is a false subject.
- Has been held is passive voice (if you can ask the question, “by whom?”—i.e., It has been held by whom?—it’s passive).
- The phrase is unnecessary. Assuming the footnote contains the appropriate authority, the citation alone makes clear that the statement is based on a court holding.
So what? … you might be thinking. It gets the point across. Maybe, but consider the differences in the following:
Depositions of treating physicians in personal injury actions generally are allowed only when necessary to prove facts unrelated to diagnosis and treatment.1 [22 words]
Yes, both are understandable, but the second version is nearly two-thirds shorter than the first. Taken on a larger scale, if you could get the same information in 400 instead of 600 pages, which would you choose to read?
The revised version still contains passive voice (i.e., “are allowed”), but sometimes that’s inevitable and, as in this instance, even preferable when the action is more important than who performs it.
2. Omit Including but Not Limited To
Perhaps the most common phrase we see in law firm documents is including but not limited to. This is one of those redundancies (like those in the next section) that no doubt stemmed from lawyers trying to cover every possibility. Include, according to Merriam-Webster, means “to contain in a group or as a part of something.” So, by its very definition, include is not all-encompassing — the whole may contain other parts not listed — and thus implies is not limited to.
Some opposing parties may argue the implication is not enough in a legal document, which Garner acknowledges while recognizing the redundancy and verbosity of this term. His solution is to include a housekeeping provision in the document that defines including to mean “including but not limited to” and then to use only including in every other instance. That makes perfect sense for a legal instrument.
Client alerts and blog posts (and similar pieces) are another matter entirely. Because they often summarize recent case or legislative developments and discuss their potential impact on clients, these pieces straddle the line between legal and marketing writing. But they’re meant to inform — not to create an airtight case. Clarity and conciseness are key here, and include standing alone will suffice. Really.
3. Single Out Doublets and Triplets
In an effort to cover every possible contingency, lawyers use doublets and triplets of seemingly redundant words to encompass what they assert are subtle distinctions. Some common examples include:
|null and void||dispute, controversy or claim|
|by and between||force and effect|
|free and clear||give, devise and bequeath|
|true and correct||unless and until|
According to plain language advocates, no document can cover every contingency, so why muddle the text trying to accomplish the impossible? These folks suggest that lawyers should try to cover only the known, reasonably expected or possible contingencies.
That might be a hard pill for some to swallow. Garner’s suggestion above seems a reasonable compromise for such phrases used repeatedly in legal documents. But think (at least) twice before using such redundancies in any piece of writing in which you’re trying to communicate with, rather than protect, current and prospective clients.
Our law firm clients include but are not limited to some of the biggest names in the business. Click here to learn more about how ProofreadNOW.com can help your firm.