“Notwithstanding anything to the contrary contained in any other document (or any part thereof) . . . .” No. Strike that.
There’s an age-old cycle of poor legal writing. You can help break it.
The first part of the cycle is familiar enough. Start with the premise that writing well isn’t easy. Most people don’t do it well—even many college graduates who think they do. Most doctors, accountants, and businesspeople—even professors—aren’t accomplished writers. Why should it be any different for lawyers?
The second part of the cycle is insidious: when you plunge groups of mediocre writers into a complex field with its own mind-boggling jargon, rife with bloated expressions that displace everyday words, the results are predictable enough. But it’s even worse: Make law students pore over reams of tedious, hyperformal, creaky prose. Acculturate them to pomposity. Then what do you suppose you’ll get? You’ll end up with average legal writers: wordy, stuffy, artificial, often ungrammatical, and largely unreadable.
In the last part of the cycle, each generation of lawyers trains the next to follow its ingrained habits. Meanwhile, generation after generation, lawyers get ridiculed for their pompous writing.
It doesn’t have to be this way—for you or anybody else. Even if you’re entering the legal profession as a fairly weak writer, you can help break the cycle. You don’t have to blindly adopt the worn-out, ineffective writing habits of the past.
Although it won’t be easy, once you become a skillful writer—especially a skillful writer on legal subjects—your rewards will be great. But before we talk about rewards, let’s ponder some obstacles you must overcome.
First, though anyone can learn to write effectively, it takes hard work. Good style is something you must strive to attain. In that way it’s like a sport: there are relatively few really good players, and they don’t attain that level of competence haphazardly. They work at it. So remember: writing is like any other skill—you can improve, but you’ll have to dedicate yourself to it. The easier path is to settle for being a so-so writer.
If you want to become a first-rate writer, you’ll have to make a commitment.
Second, since you’re in law, you’re already swimming in a sea of bad writing. We learn our trade by struggling through oceans of linguistic dreck—jargon-filled, pretentious, flatulent legal prose that seems designed to drown any flair for language. When on the job, we read poor prose almost exclusively. It’s wordy, heavy, and antique-sounding. A part of you may well come to believe that you must sound that way to be truly lawyerlike.
You’ll have to inoculate yourself against legalese.
Third, the world is complex, and so is the law. You might think that good legal writing is necessarily complex. You might even be tempted to make your writing more complex than necessary just to impress. You’ll feel the impulse to shun simplicity.
But you’ll have to be willing to embrace simplicity—while always resisting oversimplification. Of all the hurdles we’ve considered, this will be the most difficult. It will require intelligence and maturity.
This brings us to the fourth and final point. You’ll have to be psychologically mature. It’s a prerequisite. After all, law school is a life-changing experience. When you’re through with it, you’re a different person—perhaps better, perhaps not, but undeniably different. Ultimately, you’ll have to answer a question that your parents started helping you answer before you understood a single word: What kind of person are you? And every time you write, you’ll be answering some related questions: What kind of person are you as a writer? What do you sound like?
If you want to write well, you’ll have to resist sounding like a machine. Or a foreign philosopher in translation. You’ll have to learn to sound like yourself. It’s even possible that you’ll find yourself by learning to write well.
Yet the rewards are more tangible than that. They’re by-products of good writing. Because legal employers prize writing ability more highly than almost any other skill, you’ll gain several immediate advantages:
• You’ll be more likely to get and keep whatever job you want.
• You’ll be more likely to be promoted quickly.
• You’ll have greater opportunities for career mobility, with a broader range of possibilities.
If you can write—really write—people will assume certain other things about you. The most important is that you’re a clear thinker.
But you’ll surely encounter some workplace obstacles along the way. You’ll undoubtedly find that time pressures make writing and revising difficult. Maybe an employer will tell you that you’re being too clear in your writing—that you should learn to obfuscate. Maybe the advice will be to leave a court paper vague so that the specific arguments can be fashioned orally before the judge—a seat-of-the-pants approach. Maybe an employer will disapprove of your departing from some mind-numbing convention that ill-informed legal writers cling to, such as doubling up words and numerals. Good writers hear all this bad advice and much more. So how are you to deal with it?
The answer is twofold. First, do what you must in the short run. Don’t butt heads with someone who refuses to engage in an intelligent discussion about writing. If that person happens to be your supervisor, simply learn what you can from the situation. (The lessons may have more to do with the human psyche than with good writing.) Second, don’t lose your critical sense; instead, cultivate it. Think independently about why you consider some writing good and other writing bad.
In the end, you might learn to write in a bold, clear, powerful way. It will be a struggle for you—as it is for anyone. You’ll be combating both the natural human tendency to write poorly and the unnatural pressure from colleagues to write poorly. But you’ll have struck a blow for yourself and for the law. You’ll be championing clarity and cogency—even truth. The law could certainly stand to have those qualities in greater abundance.
But let’s not get ahead of ourselves. The journey toward clear thinking is only beginning.