Lawyer as Writer

A Writing Diagnostic

We might begin with this rather startling diagnosis of the way lawyer write by Richard Wydick,a long-time student of legal writing:

We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas. Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds our readers. The result is a writing style that has, according to one critic, four outstanding characteristics. It is: "(1) wordy, (2) unclear, (3) pompous, and (4) dull." [Richard Wydick, Plain English for Lawyers 3 (Durham, North Carolina: Carolina Academic Press, 1970)]

As painful and difficult as it may be, we need to start looking at our writing with a critical eye. One reason we need to be critical and revise our writing is that we smother in verbiage whatever good writing we do and our best thoughts. Extra words, unnecessary phrases, bogus paragraphs creep into our writing like gremlins. It is the rare writer among us who does not suffer from the problem.

We are too verbose. We use too many words. We employ extra, unnecessary phrases. Much of the editing I do on my own work, the work of colleagues (I edit a academic journal), and on student papers, is attacking unneeded words. These unneeded words are like weeds. We need to get in the habit of getting the weeds out of the words we want to cultivate.

Wydick, the writing guru, tells the following story:

As a beginning lawyer, I was assigned to assist an older man, a business litigator. He hated verbosity. When I would bring him what I thought was a finished piece of writing, he would read it quickly and take out his pen. As I watched over his shoulder, he would strike out whole lines, turn clauses into phrases, and turn phrases into single words. One day at lunch I asked him how he did it. He shrugged and said: "It's not hard--just omit the surplus words." [Id. at 7]

Wydick contends that there are two kinds of words in a sentence, working words and glue words. "The working words carry the meaning of the sentence." [Id. at 7]. All the other words of a sentence are glue words. "[W]hen you find too many glue words, it is a sign that the sentence is badly constructed. A good sentence is like fine cabinetwork: the pieces are cut and shaped to fit together with scarcely any glue. When you find too many glue words in a sentence, take it apart and reshape the pieces to fit tighter." [Id.]

I found the following sentence in a student paper. The sentence reads: "Mary's writing impressed me with its ability to be passive yet angry." This sentence attracts attention when we think about Wydick's notion of working words and glue words and how we get too much of the later and not enough of the former. By focusing on the working words I edit the sentence to read: "Mary's writing impressed me as passive yet angry." The phrase--"with its ability"--is not doing any work in the sentence. The sentence is more focused and gains a bit of punch when the extraneous glue words are extracted.

It is not just a problem with too many words in a sentence but extraneous sentences are strung out before us like Christmas tree lights. Consider the following paragraph:

As a first-year law student you face a lot of fears. Probably the most notable, however, is the fear of not knowing what to expect from different professors in each of your classes. There are so many questions you have as you prepare for the first day and for each successive day thereafter. Should I brief each case or just learn the rule of law? Does the professor take volunteers only or does he call on people? And, what system does he use when selecting whom to call upon--a random or some systematic method? And, after I've been called upon am I safe until he calls on everyone else at least once? While the "over preparation" that you may do to be safe from sounding dumb and unprepared can be a integral part of learning about law and what is expected in a legal career, it would be helpful to know from a student's perspective what they "wished they had known before beginning the class" that would have better prepared them for Contracts I.

My edited version of this paragraph reads:

As a first-year student, you face the fear of not knowing what to expect. Should I brief each case or just learn the rule of law? Will the professor call on me? Some of us 'over prepare' to be safe from sounding dumb? In telling you something about the course and its teacher, I hope to help you confront the fear of not knowing and avoid the problem of over-preparation.

I don't mind meandering, but the original paragraph doesn't have enough "bit." There's an additional problem in the paragraph is the lead paragraph, and consequently the reader's introduction to the writing. Simply put, the paragraph is boring. It takes up matters that anyone who has been a student in law school for two days will know something about and on which they will have strong opinions.

The edited version of the paragraph uses the writer's idea of fear but gives it more directed focus by talking about a fear we might all confront--a fear of the unknown. I do not assume, as does the student writer in the original version, that all first-year law students "face a lot of fears." Many students are fearless, unfazed, and unchallenged by their law school experience. Some of us have a lot of fears, and others don't seem to have so many at all. What about those who have fears that they are unwilling to confront, displaced fears, ignored fears? What about those who have fears but don't want to talk about them? Fears that make them unproductive, unfriendly? There is something to be said about fear in legal education, but it is hard to capture this fear in the assertion, "As a first-year law student, you face a lot of fears." In my revision of the paragraph, I try to pull even the most fearless into the ambit of the reach of the assertion about fear.

I retained the sentence from the original that reads: "Should I brief each case or just learn the rule of law?" This is a good working sentence. The question is pragmatic and will appeal to those who want concrete, specific information, but it also hints at broader philosophical problems: there is more than one way to learn; the methodology for learning, i.e., briefing cases, may not be productive; can anyone just learn rules of law? I like the question because it expresses a conflict and sets up a tension for the reader. The tension may or may not be the subject of the writing that follows. The writer may or not return to the question, but even if she does not, the question stands on its own bottom.

Of the annoyances we subject our readers to, the most easily corrected is the use of crutch words. No writing is going to be fatally flawed by the appearance of some useful words, but there are particular words that feel like nettles to the skin. An example is the word "very." Overuse of the word "the" is another.

Some word crutches point to ambivalence and unwillingness to make a definitive statement, even when we have something definitive in mind. For example, "maybe" and "some" make frequent appearances in our writing, and seldom belong where they are used. We want to be cautious and qualify. We want to be accurate. We don't want to say people, when it is actually some people that we have in mind. For example, we might want to talk about bigoted people and to do so we say, "Some people are bigoted . . . ." We know that all people are not bigoted so we qualify the statement for the purpose of accuracy. And yet, there are more direct, less "qualified" ways to say what we want to say accurately. For example, we might say, "Bigoted people frighten me." I prefer this way of putting the notion than, "Some people are bigoted and they frighten me."

* * *

Consider whether you want the readers of your writing to get the sense that they are being asked to eat a McDonald's hamburger. Know what you are asking your reader to consume when they read your writing. Consider the following advice:

Push yourself beyond when you think you are done with what you have to say. Go a little further. Sometimes when you think you are done, it is just the edge of beginning. Probably that's why we decide we're done. It's getting too scary. We are down onto something real. It is beyond the point when you think you are done that often something strong comes out. [Natalie Goldberg, Writing Down the Bones: Freeing the Writer Within 103 (Boston: Shambhala, 1986)]


Note: This writing diagnostic appeared as an Appendix to an essay on law student perceptions of themselves as writers. See James R. Elkins, The Things They Carry With Them Into Legal Writing (and Legal Education), 22 Legal Stud. F. 749 (1998).


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