It is often said that effective writing does not tell, it shows. Justice Thomas’s recent opinion in District of Columbia v. Wesby, No. 15–1485, slip op. (Jan. 22, 2018), does exactly that. It puts you at the scene with the officers during those early morning hours. You can visualize the house, the filth on the floor, the partygoers scampering about the place. You can hear the commotion and whispers. You can see the officers standing there questioning two of the partygoers in an effort to track down a woman known only as “Peaches” — “She did not know Peaches’ real name. And Peaches was not there.” Wesby, slip op. at 3. Golden.
Unfortunately, most legal writing is nothing like this. All too often lawyers employ a lazy and mechanical approach to drafting facts. Fact and background sections of briefs plod along as if the writer could care less about the only person who matters, the reader. Most legal writing is lawyered up with these common tools of the legal writing trade:
- Define as many terms as you can to avoid confusing the reader—even where the term is obvious. If you have at least five or more parentheses that begin with “hereinafter” followed by a capitalized term, you’re in the kill zone.
- Replace names with acronyms wherever possible because everybody likes the challenge of trying to remember what those acronyms stand for.
- Even if dates are not relevant, include as many as you can to keep readers on their toes, thinking they must remember those dates as having some critical importance to the case.
- And because every reader loves to solve math problems, never express time in terms of time, stick with dates instead. And always express each date fully by month, day, and year, e.g., “On or about March 1, 2016. Then, on or about March 3, 2016 ….” That’s much better than “two days later” or a “few days later.”
- Follow every number with the same number in parenthesis to avoid any confusion that you meant what you said, e.g., “the sixteen (16) plaintiffs sued the five (5) police officers.”
- Whenever you can, make your prose as long as possible to show intellectual force. So instead of, “In the living room, the officers found a makeshift strip club.” Wesby, slip op. at 2. Try, “As the officers entered into the living room area of the house, they observed approximately two (2) to four (4) women who appeared to be in the process of removing their clothes in front of other persons who had either previously provided compensation for such removal or appeared to be prepared to provide compensation for the same.”
- The terms “same” and “such” move you into the kill zone. Treat the same as such.
- Try using common and boring language to avoid startling your reader. So instead of, “The officers found more debauchery upstairs.” Wesby, slip op. at 2. Try, “The officers happened upon further and additional questionable moral activities when they entered the upstairs floor of the house.”
- Do not edit. You worked hard on that first draft so make your reader labor just as hard to read it. Besides, you want to give your reader a feeling of accomplishment upon reaching the end.
If you want to kill good writing, that is how you do it. Fortunately for those of us trying to understand why the officers had probable cause to arrest the partygoers, the Wesby opinion employs none of these tools.