Lawyers’ Toughest Case May Be With the Language

In 1596, an English chancellor decided he had had it with lawyers’ wordiness.

Gazing at a document filed in his court, the chancellor ordered a hole cut through the center of the thing, all 120 pages of it.

Next, he directed that the lawyer who wrote it have his head stuffed through the hole. The offender was then led around, to be exhibited to all those attending court.

Some four centuries later, the State Bar of California is trying a different approach.

Led by a San Diego attorney, the bar’s Board of Governors recently passed a resolution urging its 117,000 members to “promote and foster” the use of plain English. The resolution was prompted by a 1987 bar survey in which 90% of the public and 91% of the lawyers responding said there was a need for simpler legal documents.

The board voted to urge lawyers to simplify forms and language used in the practice of law. It also directed bar staff to develop “simple-language guidelines” for communicating with the public and for helping lawyers communicate with clients.

“What I’ve discovered since we passed the thing is that there’s a ton of interest,” said San Diego lawyer John Seitman, the member of the bar board who led the drive to pass the measure.

“That tells me there’s a problem we’re addressing,” Seitman said.

The bar’s action--the governors took a first step by dropping the word hereby from the resolution--comes as lawyers across the nation are demonstrating an unprecedented interest in learning to write clearly and concisely.

Lawyers are being turned away at the doors of special writing workshops and lectures. Legal journals regularly offer articles sharing writing tips. Books on the topic abound.

“I think the topic is hot,” said Steven Stark, who teaches writing at Harvard Law School. “If you go into any legal bookstore, there’s a dozen books on the thing. ‘Better Writing in 30 Days,’ that sort of idea.”

“I think there are a couple things going on,” Stark said. “Lawyers are not held in very high repute by the public now. That’s not anything new. But part of the problem is that they are being perceived, accurately, as unable to communicate with clients.

“Two, judges complain about it a lot. As judges have gotten more and more overworked, they complain about reading too much material that’s too long and unintelligible. So there’s not only the perception of turning off the public, (lawyers) actually are losing cases because of it, because they can’t communicate why in their briefs they should win.”

Stark teaches occasional courses through the Practicing Law Institute in Manhattan, a leading continuing-education clearinghouse for lawyers. At a seminar last month in New York, the room held 60 people. “We filled it up with 60 and we had to turn people away,” said Eileen Shapiro, an institute staff member.

Joel F. Henning is a Chicago lawyer whose firm, Hildebrandt Inc., offers writing courses to lawyers at private firms and at government offices. “Business in the legal writing field is booming,” he said.

The seminars put on by Henning’s firm run for three or six weeks at $2,500 per session, so a six-week seminar costs $15,000. Among Henning’s clients are the Bank of America’s legal departments in Los Angeles and San Francisco, IBM’s legal department and the Department of Justice. A seminar in San Diego is in the works, he said.

“I think that it is part of the overall movement to be more responsive to clients in an increasingly competitive environment,” Henning said. “The fact is that, for a long time, lawyers have written in a way that makes clients’ eyes glaze over. Frankly, I think they’re fed up and they won’t take it anymore.”

Business is booming in part because even a $15,000 investment is cost-effective, Henning said.

“I like to think of a law firm in a highly oversimplified sense as a paper factory,” Henning said. “I like to think that, in addition to improving the quality of the writing product, we’re also improving the efficiency of its manufacture, so to speak. If you can do that in a law firm, you can improve the bottom line quite dramatically.”

Case Against Extra Words

The notion the seminars and the books try to get across is that lawyers should write in a simple and straightforward manner.

After all, not even a lawyer says at dinner-table conversation: “Please pass the green beans. Said green beans are excellent.” Yet many lawyers feel compelled to write their briefs with extra words they feel lend precision, said Richard C. Wydick, a law professor at the University of California, Davis. Wydick’s book “Plain English for Lawyers” includes that example and the story of the hapless English lawyer of four centuries ago.

That hoped-for precision, however, is usually illusory, said David Mellinkoff, professor emeritus at UCLA law school and the dean of legal writing specialists.

“If you ask most lawyers or judges why they write the way they do, they’ll tell you it’s because ordinary English is imprecise,” Mellinkoff said. “‘If you write it . . . according to the language of the law, it might not look pretty, but it is precise and will be understood by lawyers and judges years from now and so forth.’ Most of that is hogwash.”

A “small core” of legal terms of art--such as hearsay or plaintiff --assuredly have their place because they are precise, Mellinkoff said.

“But most of the language of the law is not precise and most of the language of the law does not have to be repeated and repeated and repeated in order to make legal documents and legal writing precise and clear,” Mellinkoff said.

“It is most important at the present time, when so many people other than lawyers are so intimately connected with the law and the law bears so directly on their everyday life on so many people . . . that lawyers write and speak so that they will get their message across,” he said.

The trend toward the use of “plain English” in lawyers’ private practice is about 10 years behind the height of the movement toward simple language in other areas of the law.

The broader movement itself perhaps can be traced back to 1963, when Mellinkoff published his first book on the subject, “The Language of the Law.”

Legal Best Seller

Previously, there had been occasional attention paid to the topic--in 1939, for instance, a Yale law professor put out a book called “Woe Unto You, Lawyers!” complaining of lawyers’ “dreary double-talk”--but Mellinkoff contends that his book “gave courage to lawyers who wanted to make a change.”

Wydick published his work in 1978. It since has “outsold any law book ever published in the United States,” more than 230,000 copies, said Keith Sipe, president of the Carolina Academic Press, the Durham, N.C., publisher.

“Our other law books, if we sell 2,000 of them, we feel we’ve got a best-seller,” Sipe said. “Most sell 700 to 800.”

About the same time Wydick hit print, many federal regulations, at then-President Carter’s urging, were simplified. And many states adopted laws requiring clarity in consumer documents.

California did not go that far. The Legislature did, however, pass a law ordering state agencies producing regulations to write those after Jan. 1, 1983, in “plain, straightforward language.”

Many law schools also began offering legal writing courses. Most “good law schools” now offer a course “designed to teach, among other things, the plain English style,” Wydick said.

But seeing practical results entails “a long process,” Mellinkoff said. And there’s a vicious cycle at work, he said.

Too often, school administrators don’t grant the writing courses the veneer of importance given to core courses, Mellinkoff said. A too-frequent and telling indication, he said, is when younger members of the staff, instead of a tenured professor, teach the course.

Then there are the materials that students must read in those core courses, primarily old appellate cases, riddled with legalisms, Mellinkoff said.

After reading all those cases, students during exams “don’t get graded for bad writing,” said Tom Goldstein, a lawyer and the dean of the graduate journalism school at the University of California, Berkeley. They “get graded for thinking. There’s no incentive.”

During the summer, students work at law firms. “I have heard from numerous of my students, who return from a summer at a law office, and they say, ‘Golly, the style of writing we were taught in our first-year writing program received sneers from the senior partners with whom I was working,”’ Wydick said. “‘They told me to do it in accordance with the standard, legalistic language that has been used in the office for years.”

“I think there is a generation gap problem,” Wydick said. “As younger lawyers become partners themselves, we may see a real change in the prevalent legal style.”

Maybe, said Mellinkoff. Lawyers are under “terrible time pressure to get the material out right now, quickly,” and that pressure plays havoc with the art of crafting sentences, he said.

Need for Editors

A full-time editor would do wonders for the material most law firms produce, both Goldstein and Stark said.

Very few currently have an editor, Stark said. “The idea that you could produce dozens of briefs a year and never have anybody edit them is crazy,” he said.

Firms also could hand out awards for best and worst writing of the month or year, Goldstein said. The problem needs “individual attention,” he said.

Simplicity is “the message that has to be gotten across,” Goldstein said. “So the State Bar saying this, fine. They should say it, they should repeat it.” But real change will only come from the schools and firms, he said.

That change is inevitable, said Robert Benson, a professor at Loyola Law School in Los Angeles, conceding, however, that he is an optimist.

In 1987, Benson surveyed appellate judges in Los Angeles, as well as their clerks, showing them briefs written in plain English and in “gobbledygook.”

The judges and clerks far preferred the simpler briefs, Benson said, saying it was much more persuasive and “must have been written by lawyers from prestigious law firms. On the other hand, the gobbledygook must have been written by lawyers with low prestige.

“That’s what’s going to get them,” Benson said, predicting the doom of legalese within a generation.

“These people don’t want to be thought of as shlocky,” he said. “And that’s what legalese is: shlocky.”