Tag: plain language

Conversing with Lawyers (Who Talk Like They Write): Date Night

Finally, it was Friday night and Betty was thrilled that her husband Don, a senior associate at Mega Firm, would make it home by 7:00 so they could go out to dinner together.  Don finally arrived. They jumped in the Audi and sped off down the street.  “Where should we go?” Don asked.

“You decide.”

“How about Chilis and/or Outback ….” Don responded.  They may drive an Audi, but they still liked the chain restaurants.  But Betty had a bigger problem: Where did Don want to eat?

“So, do you want Chilis or Outback?” she asked for clarification.

“Yeah, Chilis and/or Outback…”

“You want both?”

“I like both.”

“But where do you want to eat?”

“Don’t care.”

“Obviously. Just pick one.”

“I did–”

“You didn’t. You said Chilis ‘and/or’ Outback. That doesn’t make any sense. ‘Or’ would mean one or the other—that you’re fine with either; ‘and’ would mean that you want to go to both and that’s not going to happen.”

“Listen, I write contracts every day using ‘and/or’—it makes perfect sense.  It’s in every form that I’ve read and used in the five years I’ve been at Mega Firm.  Sterling Goodfellow uses it all the time and he’s a senior partner … has a 23,500 square foot log cabin near Bear Lake,” he glanced confidentally at her, then back to the road. “It’s a legal term.”

“It’s stupid. Take me home,” Betty demanded. At this moment she realized that her mom was right.  She should have married Henry, an architect.  He wasn’t afraid of commitment.

If a Lawyer Wrote It: Moby Dick

Please take notice and refer to me as Ishmael (hereinafter “Ishmael,” “I” or “me”).  On or about approximately some years ago, having approximately little to no ($0) monies on my person, moreover, having nothing of interest to me on that certain real property which was then my place of abode, I determined to leave said real property for the adjacent waters (hereinafter “the Ocean” or “Sea”) which I decided to explore via a large floating vessel (hereinafter the “Ship”). This idea arose as a proximate cause of the anger that had been arising from my time on said real property. Indeed, whenever I start feeling the corners of my mouth start to project themselves downward. Furthermore, whenever there is rain and the sky is gray proximately causing my mood to feel the same. Moreover, whenever I find that I have stopped involuntarily in front of various structures wherein caskets are manufactured and stored.  Indeed, whenever I end up at the end of every funeral procession that I come upon whereupon I become clinically depressed and contemplate taking my life by stepping into oncoming traffic. Or, on the other hand, becoming so angry that I determine to commit assault and battery by removing the hats off other person(s) heads. I think about going to the Seas as soon as practicable.  Said Ship is my alternative to a pistol and a ball.  Marcus Porcius Cato Uticensis (hereinafter “Cato”) has a tendency to “fall upon his sword” with various philosophical statements. Whereas I quietly take to the Ship, which is not surprising.  Most men at various times do the same thing.  That is, they have the same feelings as I do towards the Oceans.

Ancient Relics

Tuesday night, April 3, 2018. Attorney Duncan Winston just returned home from the gym. He tossed his gym bag on the floor, frustrated that once again he could find no takers for a game of Jai alaia. Maybe it was for the best, he had work to do. Before sitting down at the desk in his study, he went through his usual routine. First, he took his phone off the hook. Next, he switched on his television for a little background noise. He turned the knob through all four stations. But even after fidgeting with the rabbit ear antenna, and caking it with more foil, he just couldn’t get a clear enough reception. No matter. He grabbed a mixed tape and popped it in his boombox. (He would have turned on a movie but his Betamax was broken.) After hearing the hard slam signaling that the cassette was rewound, he pushed play and moved to his desk. Next, he ensured he had sufficient reams of paper lined up in his dot matrix printer. (That paper was hard to come by these days.) He then sat down at his desk and fired up his Commodore 64. As he waited for the system to boot up, he reached for his copy of Blackstone and cracked it open. The musty smell of the parchment was familiar, like an old friend. Time to get to work. There was no doubt how he would start this motion—the same he way he had started every motion, pleading, and filing since he began practicing law:

COMES NOW the Plaintiff, Southwestern Utah Red Rock Appliance Wholesale, Inc., a Utah corporation (hereinafter “SWURRAW”), by and through its undersigned counsel, Duncan G. Winston, Esq., and hereby ….

How to Lawyer Up (and Kill) Good Writing

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.

Conversing with Lawyers (If They Talked Like They Wrote): A Post-Game Discussion

Ted and John each just finished a long day’s work, Ted with the parks department and John as an economist at a regional bank.  They meet at the local pub and grill. After exchanging fist-bumps, they take their seats at the bar.  “Barkeep,” John said, two fingers in the air.  The bartender knew what that meant.  John and Ted are regulars. They launch into conversation, oblivious to the fact that lurking two stools down is Sterling Augustus Goodfellow III, Attorney at Law.

“Did you see the game last night?” Ted asked enthusiastically.

“That was unbelievable, to throw on fourth-and-goal from the one …” John replied, shaking his head as he brought his beverage up for a quick sip.

Goodfellow, always interested in the conversation of common-folk, couldn’t help himself. “Comes now Sterling A. Goodfellow the third, by and through himself,” he slipped off his seat and started over to them.  “Are you two discussing the football contest held on or about September 8, 2017, between the New England Patriots, a National Football League club, hereinafter [air quotes] ‘N-E-P’ and the Kansas City Chiefs, a National Football League club, hereinafter [air quotes] ‘K-C-C’?”

They both turned their heads towards Goodfellow as he moved to the empty stool next to John. Was this guy serious?

“Yeah,” John responded, careful not to make eye contact.  “The Patriots/Chiefs game last night.”  His tone left no doubt that he was irritated by the invasion of this stranger with his mismatched shirt and tie ensemble.

After panning the area for a hidden camera, Ted simply ignored Goodfellow and turned back to his discussion with John, “One of those teams has a chance to play in the Super Bowl this year,”

“The Patriots, maybe … but the Chiefs, not a chance,” John responded.

Goodfellow wanted in. “I believe that N-E-P and K-C-C both have a decent opportunity to qualify for said game.”

John and Ted looked at each other, then to Goodfellow. “What did you just say?” Ted asked in a slow, measured tone.

Goodfellow could hardly believe the question.  He slowed his speech for the common-folk, “I said that both N-E-P and K-C-C, collectively [air quotes] ‘The Teams,’ have an opportunity to qualify for said game mentioned hereinbefore.”

As he brought up his mug, John shook Ted off with a quick glance—he was not to further engage. Ted got his message, but didn’t care.  He turned to face Goodfellow: “You mean that both the Patriots and Chiefs have a chance to make it to the Super Bowl this year … is that what you’re telling us? Because they can’t both make it, they’re in the same conference.”

“There is not another game mentioned hereinbefore, is there?” Goodfellow responded. “And by [air quotes] ‘The Teams,’ I did not mean to suggest or imply that both of them would qualify for said game at once, but clearly that The Teams both have an opportunity to qualify for said game, meaning one team or the other—in the disjunctive sense, not the conjunctive.  In other words, N-E-P or K-C-C both have a chance to represent the American Football Conference, hereinafter [air quotes] ‘A-F-C,’ against the victor of the National Football Conference, hereinafter [air quotes] ‘N-F-C,’ in the game that is typically held on or about the last week of January or first week of February commonly known as the [air quotes] ‘Super Bowl…Of course, if they won the A-F-C, K-C-C or N-E-P would likely have to play against G-B-P.’”

Ted stared with a blank look on his face.  But John had it figured out, “You some kinda lawyer?”