Plain english for lawyers

California Law Review
Volume 66 | Issue 4 Article 3
7-31-1978
Plain English for Lawyers
Richard C. Wydick
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Recommended Citation
Richard C. Wydick, Plain English for Lawyers, 66 Cal. L. Rev. 727 (1978).
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Plain English for Lawyers
Richard C. Wydickt
We lawyers cannot write plain English. We use eight words to say
what could be said in two. We use old, arcdne phrases to express com-
monplace ideas. Seeking to be precise, we become redundant. Seek-
ing to be cautious, we become verbose. Our sentences twist on, phrase
within clause within clause, glazing the eyes and numbing the minds of
our readers. The result is a writing style that has, according to one
critic, four outstanding characteristics. It is: "(1) wordy, (2) unclear,
(3) pompous, and (4) dull."'
Criticism of lawyers' writing is nothing new. In 1596 an English
chancellor decided to make an example of a particularly prolix docu-
ment filed in his court. The chancellor first ordered a hole cut through
the center of the document, all 120 pages of it. Then he ordered that
the person who wrote it should have his head stuffed through the hole,
and the unfortunate fellow was led around to be exhibited to all those
attending court at Westminster Hall.2
When the common law was transplanted to America, the writing
style of the old English lawyers came with it. In 1817 Thomas Jeffer-
son lamented that in drafting statutes his fellow lawyers were accus-
tomed to "making every other word a 'said' or 'aforesaid,' and saying
everything over two or three times, so that nobody but we of the craft
can untwist the diction, and find out what it means. .... ,,3
In recent times criticism of lawyers' writing has taken on a new
intensity. The popular press castigates lawyers for the "frustration,
outrage, or despair" a consumer feels when trying to puzzle through an
insurance policy or installment loan agreement.4 President Carter has
t Acting Dean and Professor of Law, University of California, Davis. B.A. 1959, Wil-
liams College; LL.B. 1962, Stanford University. The author wishes to thank Deena G. Peterson
and Ronald R. McClain for their research on sexism in legal writing and to thank Ralph C.
Taylor, John L. Vohs, Max Byrd, and Richard Haas for their critical comments on an early draft
of this article.
1. D. MELLiNKOFF, THE LANGUAGE OF THE LAW 24 (1963).
2. Mylward v. Welden (Ch. 1596), reprinted in C. MONRo, ACrA CANCELLARIAE 692
(1847).
3. Letter to Joseph C. Cabell (September 9, 1817), reprinted in 17 WRrrINGS OF THOMAS
JEFFERSON 417-18 (A. Bergh ed. 1907).
4. Nader, Gobbledygook, LADIES' HoME JOURNAL, Sept. 1977, at 68; see also TIME, Jan. 16,
1978, at 60; L.A. Times, Jan. 29, 1978, § I, at 2, col. 5; Wall St. J., Dec. 5, 1977, at 40, col. 1.
CALIFORNIA LAW REVIEW
ordered that new regulations of the federal executive agencies must be
"written in plain English" that is "understandable to those who must
comply" with them.' A recently enacted New York State statute re-
quires consumer contracts to be written "in a clear and cogent manner
using words with common and everyday meanings."' 6 Within the legal
profession itself, the criticism has mounted. Attorney Ronald Gold-
farb charges that, by writing as we do, we "unnecessarily mystify our
work, baffle our clients, and alienate the public. We could change this,
and we should."7 The need for change is magnified by innovations in
the mechanics of lawyering. We now have word processing machines
that can type old boilerplate at a thousand words per minute and com-
puter research systems that can give us an instant concordance of all
the outpourings of appellate courts, legislatures, and governmental
agencies. Soon we may drown in our own bad prose.
A well-known New York lawyer tells the young associates in his
firm that good legal writing does not sound as though it had been writ-
ten by a lawyer. In short, good legal writing is plain English. Here is
an example of plain English, the statement of facts from the majority
opinion in Palsgraf v. Long Island Railroad Co. ,8 written by Benjamin
Cardozo:
Plaintiff was standing on a platform of defendant's railroad after buy-
ing a ticket to go to Rockaway Beach. A train stopped at the station,
bound for another place. Two men ran forward to catch it. One of
the men reached the platform of the car without mishap, though the
train was already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A guard on the
car, who had held the door open, reached forward to help him in, and
another guard on the platform pushed him from behind. In this act,
the package was dislodged, and fell upon the rails. It was a package of
small size, about fifteen inches long, and was covered by a newspaper.
In fact it contained fireworks, but there was nothing in its appearance
to give notice of its contents. The fireworks when they fell exploded.
The shock of the explosion threw down some scales at the other end of
the platform many feet away. The scales struck the plaintiff, causing
injuries for which she sues.
What distinguishes Justice Cardozo's style from that found in most
legal writing? Notice his economy of words. He does not say "despite
thefact that the train was already moving"-he says "though the train
was already moving." Notice his choice of words. There are no
archaic lawyerly phrases, no misty abstractions, no hereinbefore's. No-
5. Exec. Order No. 12044, 43 Fed. Reg. 12,661 (1978).
6. N.Y. GEN. OBLIG. LAW § 5-701b (McKinney 1978).
7. Goldfarb, Lawyer Language, LITIGATION, Summer 1977, at 3; see also R. LEuLAR, IN-
TERNAL OPERATING PROCEDURES OF APPELLATE COURTS 42-52 (1976).
8. 248 N.Y. 339, 162 N.E. 99 (1928).
[Vol. 66:727
PLAIN ENGLISH FOR LAWYERS
tice his care in arranging words. There are no wide gaps between the
subjects and their verbs or between the verbs and their objects, and
there are no ambiguities to leave us wondering who did what to whom.
Notice his use of verbs. Most of them are in simple form, and all but
two are in the active voice. Notice the length and construction of his
sentences. Most of them contain only one main thought, and they vary
in length: the shortest is six words, and the longest is twenty-seven
words.
These and other elements of plain English style are discussed in
this article. Readers are urged to work the exercises in Appendix A
and to compare their work with the suggestions contained in Appendix
B.
I
OMIT SURPLUS WORDS
As a beginning lawyer, I was assigned to assist an older man, a
business litigator. He hated verbosity. When I would bring him what
I thought was a finished piece of writing, he would read it quietly and
take out his pen. As I watched over his shoulder, he would strike out
whole lines, turn clauses into phrases, and turn phrases into single
words. One day at lunch I asked him how he did it. He shrugged and
said: "It's not hard-just omit the surplus words."
A. How to Spot Bad Construction
In every English sentence are two kinds of words: working words
and glue words. The working words carry the meaning of the sen-
tence. In the preceding sentence the working words are these: working,
words, carry, meaning, and sentence. The others are glue words: the,
the, of, and the. The glue words do serve a purpose; they hold the
working words together to form a proper English sentence. But when
you find too many glue words, it is a sign that the sentence is badly
constructed. A good sentence is like fine cabinetwork: the pieces are
cut and shaped to fit together with scarcely any glue. When you find
too many .glue words in a sentence, take it apart and reshape the pieces
to fit tighter. Consider this example:
A trial by jury was requested by the defendant.
If the working words are circled the sentence looks like this:
A ( ) by (]) was ( d by the (ddant.
Five words in that nine word sentence are glue: a, by, was, by, and the.
How can we say the same thing in a tighter sentence with less glue?
First, move defendant to the front and make it the subject of the sen-
1978]
CALIFONIA. LAW REVIEW
tence. Second, use jury trial in place of trial by jury. The sentence
would thus read:
The defendant requested a jury trial.
If the working words are circled, the rewritten sentence looks like this:
The d efnant r e a (1
Again there are four working words, but the glue words have been cut
from five to two. The sentence means the same as the original, but it is
tighter and one-third shorter.
Here is another example:
The ruling by the trial judge was prejudicial error for the reason
that it cut off cross-examination with respect to issues which
were vital.
If the working words are circled, we have:
The ( )by the wasprdcia for the
G that it (E)()cross-examination with respect to
s which were (1
In a sentence of twenty-four words, eleven carry the meaning and thir-
teen are glue.
Note the string of words the ruling by the trialjudge. That tells us
that it was the trial judge's ruling. Why not just say the trialIjudge's
ruling? The same treatment will tighten up the words at the end of the
sentence. Issues which were vital tells us they were vital issues. Why
not say vital issues? Now note the phrase/or the reason that. Does it
say any more than because? If not, we can use one word in place of
four. Likewise, with respect to can be reduced to on. Rewritten, the
sentence looks like this:
The trial judge's ruling was prejudicial error because it cut off
cross-examination on vital issues.
Here it is with the working words circled:
The reu c was it
Sross-exanaon) on
The revised sentence uses fifteen words in place of the original twenty-
four, and eleven of the fifteen are working words. The sentence is both
tighter and stronger than the original.
Consider a third example, but this time use a pencil and paper to
rewrite the sentence yourself.
[Vol. 66:727
PLAIN ENGLISH FOR LAWYERS
In many instances, insofar as the jurors are concerned, the jury
instructions are not understandable because they are too poorly
written.
Does your sentence trim the phrase in many instances? Here the single
word often will suffice. Does your sentence omit the phrase insofar as
the jurors are concerned? That adds bulk but no meaning. Finally,
did you find a way to omit the clumsy because clause at the end of the
sentence? Your rewritten sentence should look something like this:
Often jury instructions are too poorly written for the jurors to
understand.
Here it is with the working words circled:
Stru ons) ~for the
to(ndtan.
The rewritten sentence is nine words shorter than the original, and nine
of its twelve words are working words. (See Exercise 1, Appendix A.)
B. Avoid Compound Prepositions
Compound prepositions and their close cousins are a fertile source
of surplus words. They use several words to do the work of one or
two, and they suck the vital juices from your writing. You saw some
examples in the last section. With respect to was used instead of on.
For the reason that was used instead of because.
Every time you see one of these pests on your page, swat it. Use a
simple form instead. Here is a list of common ones:
COMPOUND SIMPLE
at that point in time then
by means of by
by reason of because of
by virtue of by, under
for the purpose of to
for the reason that because
from the point of view of from, for
in accordance with by, under
inasmuch as since
in connection with with, about, concerning
in favor of for
in order to to
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in relation to about, concerning
CALIFORNIA LAW REVIEW
in terms of
in the event that
in the nature of
on the basis of
prior to
subsequent to
with a view to
with reference to
with regard to
with respect to
(See Exercise 2, Appendix A.)
by, from
before
after
to
about, concerning
about, concerning
on, about
C Trim Out Verbose Word Clusters
Once you develop a dislike for surplus words, you will fmd many
common word clusters that can be trimmed from your sentences with
no loss of meaning. Consider this example:
The fact that the defendant was young may have influenced the
jury.
What meaning does thefact that add? Why not say:
The defendant's youth may have influenced the jury.
Thefact that is almost always surplus. See how it can be trimmed
from these examples:
VERBOSE
the fact that she had died
he was aware of the fact that
despite the fact that
because of the fact that
PLAIN
her death
he knew that
although, even though
because
Likewise, the words case and instance spawn verbosity:
VERBOSE
in some instances the parties can
in many cases you will find
that was an instance in which the
court
discrimination claims are more
frequent than was formerly the
case
injunctive relief is required in the
case of
PLAIN
sometimes the parties can
often you will find
there the court
discrimination claims are more
frequent now
intunctive relief is required
whenc
[Vol. 66:727
PLAIN ENGLISH FOR LAWYERS
in the majority of instances the
landowner has
it is not the case that she wrote
the letter
usually the landowner has
she did not write the letter
Here are other examples of common word clusters you can elimi-
nate with no loss of meaning:
VERBOSE
during the time that
for the period of
in accordance with
insofar as ... is concerned
there is no doubt but that
the question as to whether
this is a topic that
until such time as
PLAIN
during, while
for
by, under
(omit it entirely and start with
the subject)
doubtless, no doubt
whether, the question whether
this topic
until
(See Exercise 3, Appendix A.)
D. How to Shorten Clauses and Phrases
One remedy for rambling sentences is to cut clauses down to
phrases. Here is an example:
While the trial was in progress, the judge excluded photogra-
phers from the courtroom.
The six word clause at the beginning can be cut to a three word phrase:
During the trial, the judge excluded photographers from the
courtroom.
The words which, who, and that often signal an opportunity to re-
duce a clause to a phrase:
CLAUSE
The question was designed to
impeach the prosecution witness,
who had been convicted of hav-
ing committed a felony.
The statute, which had been
enacted after the Alyeska case,
authorized the fee award.
The title search did not disclose
the easement that had been
granted six years before.
PHRASE
The question was designed to
impeach the prosecution wit-
ness, a convicted felon.
The statute, enacted after the
A4lyeska case, authorized the
fee award.
The title search did not dis-
close the easement granted six
years before.
When. you see the words it is and there are, stop to see if you can
replace a clause by a shorter construction:
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CALIFORNIA LAW REVIEW
VERBOSE PLAIN
There are three key paragraphs in The pretrial order has three
the pretrial order. key paragraphs.
It is possible for the court to take
judicial notice of its own records.
Despite the legislative history,
there are doubts about the intent
of Congress.
The court can take judicial
notice of its own records.
Despite the legislative history,
the intent of Congress is in
doubt.
Sometimes you can clean out surplus words by replacing a clause with
an adjective or adverb:
VERBOSE
The trial judge denied the
defendant's motion, which asked
for summary judgement.
The plaintiff rejected the offer
made by the defendant to settle
the case for $10,000.
The decree which was entered in
January ordered payments to be
made each month for child sup-
port.
PLAIN
The trial judge denied the
defendant's summary judgment
motion.
The plaintiff rejected the
defendant's $10,000 settlement
offer.
The January decree ordered
monthly child support pay-
ments.
(See Exercise 4, Appendix A.)
E. Do Not Use Redundant Legal Phrases
Why do lawyers use the term null and void? According to the
dictionary, either null or void by itself would do the job. But the law-
yer's pen seems impelled to write null and void, as though driven by
primordial instinct. An occasional lawyer, perhaps believing that null
and void looks naked by itself, will write totally null and void, or
perhaps totally null and void and ofnofurtherforce or effect whatsoever.
Null and void is a lawyer's tautology-a needless string of words
with the same or nearly the same meaning. Here are other common
examples:
alter or change last will and testament
cease and desist made and entered into
confessed and acknowledged
convey, transfer, and set over
for and during the period
force and effect
free and clear
full and complete
give, devise, and bequeath
good and sufficient
kind and character
order and direct
perform and discharge
rest, residue, and remainder
save and except
suffer or permit
true and correct
undertake and agree
unless and until
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PLAIN ENGLISH FOR LA1YERS
Lawyer's tautologies have ancient roots. Professor Mellinkoff ex-
plains9 that, at several points in history, the English and their lawyers
had two languages to choose from: first, a choice between the language
of the Celts and that of their Anglo-Saxon conquerors; later, a choice
between English and Latin; and later still, a choice between English
and French. Lawyers started using a word from each language, joined
in a pair, to express a single meaning. (For example, free and clear
comes from the Old Englishfreo and the Old French cler.) This re-
dundant doubling was used sometimes for clarity, sometimes for em-
phasis, and sometimes just because it was the fashion. Doubling
became traditional in legal languge and persisted long after any practi-
cal purpose was dead.
Ask a modem lawyer why he or she uses a term like suffer or
permit in a simple real estate lease. The first answer likely will be: "for
precision." True, there is a small difference in meaning between suffer
and its companion permit. But suffer in this sense is now rare in ordi-
nary usage, and permit would do the job if it were used alone.
The lawyer might then tell you that suffer orpermit is better be-
cause it is a traditional legal term of art. Traditional it may be, but a
term of art it is not. A term of art is a short expression that (a) conveys
a fairly well-agreed meaning, and (b) saves the many words that would
otherwise be needed to convey that meaning. Suffer or permit fails to
satisfy the second condition, and perhaps the first as well. The word
hearsay is an example of a true term of art. First, its core meaning is
fairly well-agreed in modem evidence law, although its meaning at the
margin has always inspired scholarly debate.10 Second, hearsay en-
ables a lawyer to use one word instead of many to say that a statement
is being offered into evidence to prove that what it asserts is true, and
that the statement is not one made by the declarant while testifying at
the trial or hearing. Any word that can say all that deserves our praise
and deference. But suffer or permit does not.
In truth, suffer orpermit probably found its way into that real es-
tate lease because the lawyer was working from a form that had been
used around the office for years. The author of the form, perhaps long
dead, probably worked from some even older form that might, in turn,
have been inspired by a formbook or some now defunct appellate case
where the phrase was used but not examined.
If you want your legal wr