Daily Dispatch

Legal Writing

Break Up the “Conspiracy” by Resolving to Simplify This Year

By | Jan.04.17 | Client Service, Communicating, Daily Dispatch, One of a Kind

legalese

“All professions are a conspiracy against the laity,” said George Bernard Shaw. In the legal profession, the best evidence of a conspiracy is the often impenetrable density and complexity of the law. It’s almost impossible for laypersons to understand the law and its processes. Lawyers perpetuate the conspiracy through their use of jargon and legalese.

There’s been a great deal of discussion, writing and study related to the costs of using legalese. But it does not seem there’s been much progress in convincing lawyers to communicate in a simpler, more accessible way.

Too Often Lawyers Conflate Complexity with Sophistication

The legal profession would benefit if more lawyers followed the lead of Leonardo Da Vinci, who said, “Simplicity is the ultimate sophistication.” In other words, simple is not simplistic. It’s sophisticated.

In a brilliant piece for the Michigan Bar Journal, Bryan Garner, president of Dallas-based Law Prose, asked Theodore Olson, former solicitor general of the United States, what he thought of legalese. Olson’s answer:

“Legalese is jargon. All professions have it. All professions use it as a substitute for thinking, and they all use it in a way that makes them appear to be superior. Actually, they appear to be buffoons for using it.

“I do a lot of television, and I do a lot of articulating of positions on behalf of clients. One of the reasons I’m asked to do that is that I understand that the people on the other side of that camera don’t want you to speak like a lawyer. That’s a pejorative term. ‘Talking like a lawyer’ is, to most people, talking in terms that sound boorish, condescending, and unintelligible. And lawyers need to be able to speak to people and forget the jargon and forget the legalese, because you can communicate the same thoughts without being swept up in the technicalities of a particular legal issue. They want to know what you’re talking about. What do you mean? If you can’t express that, you shouldn’t waste people’s time.”

Yet jargon and legalese continue to run amok in briefs, memos and blog posts written by lawyers. Judges hate it and clients can’t understand it. So why do we do it?

Robert W. Benson, a former professor at Loyola Law School and a leading advocate for “plain language” in legal writing, gave his take on what motivates lawyers to perpetuate legalese:

“Inertia, incompetence, status, power, cost and risk are a formidable set of motivations to keep legalese. Their tenacity should not be underestimated. One observation must be made, however. These motivations lack any intellectually of socially acceptable rationale; they amount to assertions of naked self-interest.”

Garner suggests the problem primarily derives from the casebook method of instruction used in law schools. Students read cases full of, as Garner puts it, “highfalutin legal jargon,” and then imitate this style in their own writing. This is how an accomplished lawyer communicates, the law student concludes, and so he does his part — often unwittingly — to perpetuate the conspiracy of the profession.

While it’s important to identify the problem’s root causes, finding a cure is paramount. That’s because there’s a cost to the conspiracy. Clients consult with lawyers because they are uncertain about their legal rights. They need a contract drafted or a lawsuit litigated. In attempting to explain the issue to the client, the lawyer further muddles it. This leaves the client confused, dissatisfied and unsure what value the lawyer provided.

The problem is that many lawyers mistake complexity for value. They are hired because the client perceives them to be smart and sophisticated, the thinking goes, and so they must act smart and sophisticated. They then produce work product that is unnecessarily long, dense and indecipherable to a layperson. They write a two-page letter full of Latin terms and statutory citations when a two-paragraph email will do.

The Best Path Forward Is Often the Simplest

Here’s a real-world example. I recently stumbled upon the blog of a consulting firm that provides services for lawyers. One of the articles posted on the blog dealt with the issue of personal branding for lawyers, a topic I often write about. It turns out the “authors” of the article had lifted entire paragraphs from my book, “One of a Kind: A Proven Path to a Profitable Legal Practice,” and passed them off as their own in this article. What hadn’t been copied verbatim had been paraphrased, sloppily, in their piece.

If a client had come to me with this issue while I was still practicing law, it’s likely I would have pursued the same course of action on the client’s behalf that I ended up pursuing myself. I would have sent a communication identifying the copyright infringement and demanding that the post be taken down. But instead of writing the simple, two-paragraph email that took me two minutes to draft and send, I likely would have drafted a lengthier letter, detailing the infringement with great specificity and citing to the appropriate statutes and case law on the issue.

And the result would have almost certainly been the same: Within 10 minutes of sending the short email I drafted, the offending post was taken down.

In fact, the riskier decision may have been to send the letter, laden with legalese and threats (which I may or may not have carried through with given the associated costs) to seek damages through litigation. This may have prompted the infringers to forward the letter to their own counsel, starting a time-consuming and unnecessary back-and-forth.

I’m not suggesting that I, or any other lawyer, when confronted with this set of facts would have pursued the more complex course of action out of a desire to run up a bill. Rather, this anecdote demonstrates that, when dealing with a scenario involving a straightforward set of facts, the best path forward is often a simple one.

I’m not naive. I know that the law is complex, and so requires complexity. Lawyers, like doctors, have to thoroughly document their work. Certain terms that have little or no meaning in “normal” life, and thus may be considered legalese or jargon, have very specific meaning as defined by courts, statutes and centuries of usage in the profession. Therefore they must be used because attempting to use other terms would add complexity, not clarity. These are “terms of art,” according to Garner, not “highfalutin legal jargon.”

I’m not advocating we dumb-down the profession. I’m just saying that sometimes, when appropriate, we dial it back a bit. Clients won’t think less of lawyers if they communicate in plain English. Most clients will appreciate it. Judges, too. And it all starts with simplifying the primary means through which lawyers communicate: the written word.

One of the best writers, and teachers of writing, of our generation is Stephen King. He is a leading advocate for the use of simple language, and once said: “Any word you have to hunt for in the thesaurus is the wrong word. There are no exceptions to this rule.”

There’s a time for complexity — but it’s not all of the time. In 2017, let’s break up the conspiracy and resolve to communicate in a more clear and concise manner.

Jay Harrington is co-founder of Harrington Communications, where he leads the Brand Strategy, Content Creation and Client Service teams. He is author of the book "One of a Kind: A Proven Path to a Profitable Practice," as well as the e-book "How to Start Fast as a Law Firm Associate." Previously, Jay was a commercial litigator and corporate bankruptcy attorney at Skadden, Arps, Slate, Meagher & Flom and Foley & Lardner. He earned his law degree from the University of Michigan Law School. He writes regularly for Attorney at Work. Follow him on Twitter @harringj75.

Illustration ©iStockPhoto.com

Sponsored Links

Recommended Reading

Comment