Does Style Matter In Legal Writing?

When we write to a court or to opposing counsel our goal is typically to persuade. When we write to a client, an expert or to a colleague, our aim is primarily to convey information. Is there any room here for style? Is style something we should even bother with, considering many of us are on the clock and a client is paying for our time? After all, do we hire the cab that will take the most scenic route? Who’s going to hire a lawyer because they speak on paper with the eloquence of Shakespeare?

Thankfully for many of us who came to the profession with some interest or background in literature or writing, the answer is yes, style does matter in legal writing. In The Elements of Legal Style, writing guru Bryan Garner reminds us why. He says,

“Legal writers must recognize what other inhabitants of the literary world already know: A good style powerfully improves substance. Good legal style consists mostly in figuring out the substance precisely and accurately, then stating it clearly. Too many of us equate artful writing, or ‘style,’ with the warrior’s cumbersome headdress, pleasing to the eye but irrelevant (perhaps even a hindrance) to the conquest. Music provides the better analogy: Does anyone fail to recognize that a Beethoven symphony becomes a different piece when played by an ensemble of kazoos instead of a major symphony orchestra? The medium is the music. Why should we find it difficult to accept the parallel truth in writing?” (p.4)

In Lawyering, James Freund offers a different take why style should not be an afterthought. He writes,

“It’s not telling any tales out of school to observe that most writing on legal subjects by lawyers–the style, as contrasted with the substance–tends to be extremely dull. There is a pre-packaged, monochromatic quality to the prose that dulls the edges of even the most fascinating issues. It’s almost as if the author were seeking the Somber Seal of Approval, fearful that any injection of sprightliness or creativity into the writing will stamp him as a lightweight thinker or lacking in total dedication to a ponderous profession. And then too, most lawyers are so concerned with the substance of what they’re saying . . . that once having achieved precision, they give little or no thought to style. . . . Whatever merit total sobriety may  have in formal legal documents . . . it strikes me as altogether unnecessary in less formal (and formidable) writings such as letters or memos, where you are attempting to educate or persuade–particularly when your reader is not a lawyer. You may have succeeded in rendering your document clear and concise, but if it’s dry and monotonous the reader may experience difficulty keeping his mind on the subject at hand.” (pp.54-55)

While these may offer compelling arguments in favor of attention to style in legal writing, questions remain, including (1) what exactly does “style” mean in this context, and (2) can too much of it be a bad thing? Because this post was not intended to be book-length, I’ll turn back to Bryan Garner for some brief, but telling, responses. First, he writes this about “style,”

“What is style? We can hardly improve on Jonathan Swift’s formulation, ‘proper words in proper places.’ That focuses on the right level of detail, but it begs questions or propriety. What are proper words, and how do you know when they have been put in proper places?

In judging words and their placement, remember that the character of the writer determines the character of the prose. . . What you say and how you say it reveals your habits of mind. In trying to write your best, you may strive to proportion one part to another and to the whole, to cut out what is useless, to accent what matters most, and to preserve a uniform tone throughout.” (p.5)

Can style be overdone? Absolutely! I suspect most of us know it when we encounter it. A Shakespearean demand letter? A Dantesque jury instruction? Imagine an US District Court law clerk confronting a brief riddled with Faulkner’s poetic, but torturous sentences. While Garner acknowledges that tastes for “grandeur” in legal writing have evolved over time, he describes what is currently in vogue:

“[M]odern readers — even of law books — prefer the Attic style. We like what is plain; we grow impatient with what is fancy. Legal readers admire directness and scorn baroque curlicues.” (p.8)

Well, there’s a starting place. Consider style. Accent that which is important. Cut out what is useless. Strive for proportion. But, at all costs, guard against the baroque curlicue.