In my previous life as a sportswriter, I used to enjoy making fun of legal writing. As a lawyer, I still do. Abraham Lincoln was a lawyer but managed to deliver the most famous speech in American history in only 272 words. Somehow, we have drifted.
Safe to say Lincoln never penned the self-evident phrase that cautioned Pop Tart eaters, “Pastry may be hot when heated.” These notes of excessive caution are all too common. Vidal Sassoon once warned its customers not to use hair dryers while sleeping. Car commercials inform us, in the smallest print possible, that the death-defying stunts depicted in their ads are performed by professional drivers on a closed course, just in case you wanted to test the drifting capabilities of your Prius during the afternoon commute. My favorite over-explainer came in the instructions for my chainsaw, which cautioned not to hold the blade end while the chainsaw was in use.
All these phrases violate a most basic rule of writing, indeed of any communication, in that they do not transmit useful information from one person to the next. There cannot, for example, be people who were confused about the whole hair dryer/sleeping issue. One egregious example was a wrongful death lawsuit that observed that the death of the deceased meant that he would no longer be able to pursue his normal activities in the manner to which he was accustomed.
The need to explain the obvious is not the only common flaw in legal writing. Sometimes the need to sound sophisticated backfires. For example, my severance package from a previous employer contained the sentence, “Enclosed is a release requiring your execution.”
There is no reason why lawyers must write poorly. There is no course in bad writing in law school or anything. Yet, somehow, so many of us see “car” and decide to write “motor vehicle,” as if our job was to suck all whimsy out of the world.
Sometimes bad legal writing creates serious problems. Consider this famous sentence: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We don’t need to agree on gun control to agree that this is a horrible sentence. Imagine the mischief if the First Amendment came with a cumbersome introductory phrase such as, “A well regulated Press being necessary for the liberty of a free State, the right of the people to freedom of speech shall not be infringed.”
Writing in committee makes for bad writing and when it’s a committee of lawyers, it’s worse. Lawyers after all took “Thou shalt not kill,” which is an example of excellent legal writing, and turned it into, “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
Connecticut’s murder statute is actually fairly standard and, to be honest, is well drafted as those things go, its flaws coming from a need to consider all circumstances and loopholes and account for them, which is nearly impossible to accomplish while remaining pithy. Soon the legislature will be at it again, turning the simple into the complex in the hope of covering every possible eventuality.
The need to be comprehensive is the downfall of many attorneys. A classic example comes from a 2005 Texas bankruptcy case where an attorney submitted a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” The trial judge was unamused and issued an “Order Denying Motion For Incomprehensibility.”
The judge went on to note, “Or, in the words of the competition judge to Adam Sandler’s title character in the movie “Billy Madison,” . . . ‘Mr. Madison, what you’ve just said is one of the most inanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award no points, and may God have mercy on your soul.’”
Well, at least the judge’s decision was clear.
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