The Pitfalls of Simplifying Legal Writing

Article excerpt

ABSTRACT.

Considerable research attention has focused on the problem of poor legal writing skills, the gap between the law language and "ordinary" language, the central role modality plays in legal language, and the fundamental goals of legal writing. In this paper I am particularly interested in exploring language aspects of legal writing, the importance of legal writing skills, the limitations of the plain English project, and linguistic and discoursal analysis of legal language.

Keywords: good legal writing, proficiency, linguistic clarity

1. Introduction

The paper generates insights about the advancement of legal writing proficiency, the importance of context to the understanding of the law, the surface of legal discourse, and the improvement of legal writing as a continuing professional challenge. The theory that I shall seek to elaborate here puts considerable emphasis on the need to simplify the language of the law, the defining characteristics of legal language as established through linguistic and discourse analysis, the responsibility for improving legal writing, and the inability of laypeople to utilize plain laws without legal assistance. The mainstay of the paper is formed by an analysis of the fundamental qualities of good legal writing, the institutional and discursive practices of legal discourse community, the tension between details, legal precision and linguistic clarity, and the concept of good legal writing.

2. The Advancement of Legal Writing Proficiency

On Candlin et al. 's reading, an important concern in legal writing is the need to specify the appropriate legal scope of application of a statement or rule1 (learning to write legal discourse is part of a process of learning to participate in the affairs of the legal community). Analyzing and discussing judicial decisions in class is an important pedagogical technique used in common law legal education. Law is constructed, interpreted, and negotiated through language. Legal concepts and the language that expresses them form a dense texture which blurs the distinction between language and content (language does not always serve as the vehicle that expresses the subject matter; on occasion it constitutes the subject matter). The language of a statute or contract determines what legal rights, obligations, etc. are created or restricted. Legal content must be part of instruction on legal writing, varying considerably between legal systems.2 Flammer argues that as a lawyer, persuasiveness of your writing is paramount to your success3 (the legal merits of an argument ultimately persuade). A well- written pleading conveys the argument's merits without frustrating the reader with superfluous words or distractions. When making a writing-style decision, it is better to err on the side of informality and clarity than formal Legalese. Judges would have an attorney err on the side of informality than err on the side of being too stilted and formal. Judges prefer Plain English to Legalese (it is in the litigator's interest to submit pleadings in Plain English). Judges would rather have litigants submit informal pleadings, filled with contractions and first person.4

Elliott Vinson asserts that writing skills permeate the daily life of lawyers in every facet of the legal profession,5 being fundamental to success in the legal profession. Good legal writing includes the effective communication of legal analysis, following sophisticated legal thinking. Improving legal writing is a life-long learning process and a continuing professional challenge, does not simply mean focusing on basic writing skills, and will ultimately promote professional development (improving writing is a lifelong learning process: it is a life-long endeavor that lawyers should continue to develop throughout their career). The role of writing should be developed throughout the stages of a lawyer's learning continuum (writing can play a critical role in colleges to establish a solid foundation for the effective communication of critical thinking). …