Is Bad Good Enough?

by Howard Posner

But do you think it really matters?"

The man who asked the question was an administrative law judge (ALJ), chatting with me after a presentation I had just done for the National Association of Administrative Law Judiciary. My topic was editing tips for the legal writer who may not know what to look out for. My devilishly clever solution was a list of combinations of letters, findable by a word processor's search function, that can be red flags for common problems. (For example, if you find ion at the end of a word, you may have found a noun masquerading as a verb, with all the stiltedness that entails.)

But my conversation with this particular ALJ quickly branched out into the broader topic of writing like a human being communicating with other human beings, instead of plugging tired formulas into sentences that read like yesterday's oatmeal. That was the "it" in his question.

Businesses can operate under contracts that read like bad translations from the original German, convoluted appellate opinions can become law, and complaints that read like Chaucer on bad drugs can achieve their purpose. So is it worth the effort to sound human? Does it really achieve anything oatmeal doesn't? This can be an important question to someone, like the ALJ in question, who may have to crank out more than one opinion a day and has no time for endless revision. Is bad good enough?

Obviously, I think it matters. This column would be an odd pursuit if I didn't. There are lots of reasons to write like a human.

Judges prefer short, simple, readable papers, even if they don't always rule in the drafters' favor. Shorter documents decrease production costs, if only because they take less time to read and review; pages of useless words can turn into useless hours when documents go back and forth. Human writing makes a good marketing tool because clients like to understand what those outrageous fees are buying.

On the other hand, a client once worried that a complaint I'd written might, at less than five pages, seem suspiciously short to a judge considering it on demurrer among the 45-page complaints in other cases. He wondered if I should pad it out to ten pages for appearance's sake. I've heard fairly similar musings from lawyers. I didn't tell the client that I once filed an appellate brief that was one page and seven lines long--and yes, the good guys won that appeal.

I suppose that particular client had seen enough litigation to absorb its superstitions. Nonetheless, the demand for writing like human beings is growing at a pace that, though glacial by other standards, is fairly quick for the law.

The Great "Plain English" Debate has long been resolved, in principle. Nearly everyone who expresses an opinion in public endorses simple, plain writing with minimal jargon, which may mean a lot of lawyers have learned to shut up about it.

Plain-English success stories have been floating around for a few decades: the bank that took out full-page ads to inform potential customers that its consumer loan form now said "I received a completely filled-in copy of this form" instead of "Makers acknowledge receipt of a completely filled in copy of this note and disclosure statement prior to the execution hereof this __ day of ______"; or the utility that rewrote its billing statements, reducing its customer billing inquiry costs to the tune of a quarter million dollars a year (don't ask me how they got that number).

You can now find jury instructions, securities disclosures, and official regulations in plain English. Finding a contract or a complaint in plain English is more difficult: The drafters will tell you it's because those documents are more technical, but I think the real reason is that they aren't meant to be read, but rather searched for whatever specific provision is at issue or allegation is in controversy.

A major obstacle to shedding centuries of bad habits is the difficulty in recognizing them. By the time you've graduated from law school (where an example is a "hypothetical") and spent a few years with a form book, opposing counsel, or hidebound senior partner as role models, you may no longer recognize how odd your language sounds, any more than a British barrister gives a second thought to wearing a wig in court.

A sobering object lesson is Fundamentals of Legal Writing, a 1967 book by Sidney Parham Jr., about whom I know nothing except that he had some good points to make, and his publisher touted him as a prominent member of the Virginia bar. Parham fancied himself as free from the shackles of pointless tradition as I now fancy myself to be, and it's comforting to think that nobody will be reading my stuff 44 years from now to discover how delusional I was.

In a section on drafting contracts (which he called "instruments" as insistently and quaintly as James Fenimore Cooper called women "females"), Parham wrote that witnesseth was "admittedly archaic but so firmly entrenched in the draftsman's vocabulary as to allow of few, if any acceptable substitutes," and that whereas, while "another archaic survivor of the past and frequently the butt of the layman's wit," was "another of those words for which there is no modern substitute in general usage readily available to the legal draftsman."

It did not occur to him that there were no substitutes for those words precisely because they meant nothing and should be deleted altogether. But he was a child of his generation, as we all are, and confused habit with necessity, as we all do. We're all clueless about something.

Writing critics sometimes say the problem with lawyers is not that most of them write badly, but that they all think they write well. I suppose the point of the character-search approach I showed the ALJs is that it forces the writer to see a specific potential problem and decide what to do about it. But the writer still has to think that it matters.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.

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