I came across this post on the Lawyerist on the question whether good legal writing is inherited or developed. Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.
There are actually three steps. The first is to realize your legal writing needs help and care enough to try to improve it. There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs. Don’t be that lawyer. Take pride in your product. The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven’t figured out how to navigate away from this page.
The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice. It’s ironic that I spent several (ok 6, but who’s counting) years getting a degree in Literature-Writing from a really solid university, but it wasn’t until I was a staff member on Law Review that I truly began to understand the importance of active voice. If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I’ll provide a very easy example to illustrate the difference. Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant. Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.
See? Simplest thing in the world. But, even those of us who generally strive to use active voice occasionally fall into passive voice. The key is to recognize when you’re doing it and decide whether the sentence you’ve created could be improved by changing the voice.
The second way to immediately improve your legal writing is equally simple. Pare back the number of words you use to say what you’re trying to say. This was something my mentor taught me when I was a baby lawyer and I’ve generally tried to adhere to the principle, at least when writing to a court or opposing counsel. Basically, every word in any sentence should be necessary. Nothing extraneous. This will automatically take care of the tendency to include “herein” and other pointless words. It also forces the writer, you, to think about what you’re trying to say and how to say it in the clearest way possible. Judges and clerks appreciate clarity.
Now. This second “way to immediately improve your legal writing” is not a rule. It’s just an approach. And, it’s an approach I freely disregard when I want to emphasize something through repetition or diction (word choice). Hell, I often write entire paragraphs in the passive voice and include a lot of extra words. But, when I do it, I do it purposely, usually for effect. Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.* (*Ok, I’ll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia. I know that writers who know what they’re talking about, as opposed to armchair poseurs (who me?), have zero tolerance for latin phrases. If I give in to the urge to use them in an early draft, I almost always delete them.)
There. If you struggle with your legal writing, try these two suggestions. I guarantee you’ll see results.