TIP 11 Prune your prose.
Clutter sneaks into writing. The need to write precisely adds clutter. Citations add clutter. Trying to sound like a lawyer adds clutter. Quoting authorities adds clutter. Some clutter is almost unavoidable.
Thus, lawyers need to find ways, in spite of these challenges, to simplify their prose. Here are six costless ways to achieve that goal.First, avoid “throat clearing,” which refers to terms like it seems to me that, in my humble opinion, I honestly believe that, in my experience, and so on. These phrases add nothing (unless you need to soften your tone). They often use the first person (Ior me or my). But throat clearing doesn’t involve only first-person pronouns: one could argue, one might infer, if one imagines a world in which, and it should be noted are also classic throat clearers. Cutting these empty phrases will sharpen your prose.
Second, use simple words. Lawyers often want to show off their vocabularies. Resist the urge. Use the simplest term that meets your needs. Complicated or obscure words can confuse readers; if they don’t know the word, they’ll either need to consult a dictionary or plod forward without fully understanding your point. And even if you use a word correctly, you may sound pompous. Worse, you are more likely to misuse a fancy word, jeopardizing your credibility. One caveat: some champions of the wonderful “plain language” movement think that every word needs to be simple. I reject that view, especially when you adjust the sophistication of your writing to your audience. But, in general, use simple words.
Third, avoid abstract writing in real-world documents. Academic writing has changed the world, but practicing lawyers should generally avoid words like “concept” and “notion” and “nexus” and “normative” and “heuristic” and “narrative” and “meme.”
Fourth, avoid jargon. Lawyers once reveled in the monopoly that they held on both obscure Latin and French terms and other antiquated legal words.
But over time, common sense triumphed, and top American lawyers began to write in plain English. And jargon and foreign phrases are unfamiliar to more and more judges. Consider the following example (from a real motion): “On April 17, 2006, Appellant filed a Petition for writ of habeas corpus ad subjiciendum and/or writ of coram nobis and/or modification of sentence nunc pro tunc.” Some judges (and most law clerks) will beg for help. Common phrases — res judicata, res ipsa — are bearable, but if you need to use uncommon Latin or French phrases, be sure to explain those concepts, just as you would any other unfamiliar concept. Latin isn’t the only culprit: jargon can be just as problematic in English, so writers should cut phrases like the case at bar, the instant case, Now comes plaintiff, doth aver, forthwith, at present, heretofore, and so on.16 These terms make lawyers sound pompous. And judges loathe jargon and the verbosity that it tends to cause.17 So stick with jargon-free English, even if you need to cull some arguendos and a fortioraris and inter alias.Fifth, limit the number of negatives in your sentences — and certainly avoid double (or triple, or quadruple) negatives. Here’s one of the most confusing sentences I’ve ever read, and it uses a quadruple negative: “This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the board had not acted as it did.…18 Feel free to read that sentence ten more times; it will still confound you. But even when “not” or “no” appears just once in a sentence, a reader’s task grows trickier. For instance, this sentence is a bit tricky to absorb: “I did not fail to render payment.” Readers will grasp your point more easily if you say “I paid.”
Finally, lawyers use too many compound prepositional phrases such as a number of (rather than “some”), with respect to (rather than “about”), or as a result of the fact that (rather than “because”). These phrases can usually be shortened or removed.