Plain English For Lawyers PDF

California Law Review
Volume 66 | Issue 4
Article 3
7-31-1978
Plain English for Lawyers

Richard C. Wydick
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Richard C. Wydick, Plain English for Lawyers, 66 Cal. L. Rev. 727 (1978).
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Plain English for Lawyers

Richard C. Wydickt
We lawyers cannot write plain English. We use eight words to say
what could be said in two. We use old, arcdne 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 of
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."'
Criticism of lawyers' writing is nothing new. In 1596 an English
chancellor decided to make an example of a particularly prolix document filed in his court. The chancellor first ordered a hole cut through
the center of the document, all 120 pages of it. Then he ordered that
the person who wrote it should have his head stuffed through the hole,
and the unfortunate fellow was led around to be exhibited to all those
attending court at Westminster Hall.2
When the common law was transplanted to America, the writing
style of the old English lawyers came with it. In 1817 Thomas Jefferson lamented that in drafting statutes his fellow lawyers were accustomed to "making every other word a 'said' or 'aforesaid,' and saying
everything over two or three times, so that nobody but we of the craft
can untwist the diction, and find out what it means. .... ,,3
In recent times criticism of lawyers' writing has taken on a new
intensity. The popular press castigates lawyers for the "frustration,
outrage, or despair" a consumer feels when trying to puzzle through an
insurance policy or installment loan agreement.4 President Carter has
t
Acting Dean and Professor of Law, University of California, Davis. B.A. 1959, Wil-
liams College; LL.B. 1962, Stanford University. The author wishes to thank Deena G. Peterson
and Ronald R. McClain for their research on sexism in legal writing and to thank Ralph C.
Taylor, John L. Vohs, Max Byrd, and Richard Haas for their critical comments on an early draft
of this article.
1. D. MELLiNKOFF, THE LANGUAGE OF THE LAW 24 (1963).
2. Mylward v. Welden (Ch. 1596), reprintedin C. MONRo, ACrA CANCELLARIAE 692
(1847).
3. Letter to Joseph C. Cabell (September 9, 1817), reprintedin 17 WRrrINGS OF THOMAS
JEFFERSON 417-18 (A. Bergh ed. 1907).
4. Nader, Gobbledygook, LADIES' HoME JOURNAL, Sept. 1977, at 68; see also TIME, Jan. 16,
1978, at 60; L.A. Times, Jan. 29, 1978, I, at 2, col. 5; Wall St. J., Dec. 5, 1977, at 40, col. 1.
CALIFORNIA LAW REVIEW
[Vol. 66:727
ordered that new regulations of the federal executive agencies must be

"written in plain English" that is "understandable to those who must
comply" with them.' A recently enacted New York State statute requires consumer contracts to be written "in a clear and cogent manner
using words with common and everyday meanings."' 6 Within the legal
profession itself, the criticism has mounted. Attorney Ronald Goldfarb charges that, by writing as we do, we "unnecessarily mystify our
work, baffle our clients, and alienate the public. We could change this,
and we should."7 The need for change is magnified by innovations in
the mechanics of lawyering. We now have word processing machines
that can type old boilerplate at a thousand words per minute and computer research systems that can give us an instant concordance of all
the outpourings of appellate courts, legislatures, and governmental
agencies. Soon we may drown in our own bad prose.
A well-known New York lawyer tells the young associates in his
firm that good legal writing does not sound as though it had been written by a lawyer. In short, good legal writing is plain English. Here is
an example of plain English, the statement of facts from the majority
opinion in Palsgrafv. Long Island RailroadCo. ,8 written by Benjamin
Cardozo:
Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station,
bound for another place. Two men ran forward to catch it. One of
the men reached the platform of the car without mishap, though the
train was already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A guard on the
car, who had held the door open, reached forward to help him in, and
another guard on the platform pushed him from behind. In this act,
the package was dislodged, and fell upon the rails. It was a package of
small size, about fifteen inches long, and was covered by a newspaper.
In fact it contained fireworks, but there was nothing in its appearance
to give notice of its contents. The fireworks when they fell exploded.
The shock of the explosion threw down some scales at the other end of
the platform many feet away. The scales struck the plaintiff, causing
injuries for which she sues.
What distinguishes Justice Cardozo's style from that found in most
legal writing? Notice his economy of words. He does not say "despite
thefact that the train was already moving"-he says "though the train
was already moving." Notice his choice of words. There are no
archaic lawyerly phrases, no misty abstractions, no hereinbefore's. No5.
Exec. Order No. 12044, 43 Fed. Reg. 12,661 (1978).

6. N.Y. GEN. OBLIG. LAW 5-701b (McKinney 1978).
7. Goldfarb, Lawyer Language, LITIGATION, Summer 1977, at 3; see also R. LEuLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE COURTS 42-52 (1976).
8. 248 N.Y. 339, 162 N.E. 99 (1928).
1978]
PLAIN ENGLISH FOR LAWYERS
tice his care in arranging words. There are no wide gaps between the
subjects and their verbs or between the verbs and their objects, and
there are no ambiguities to leave us wondering who did what to whom.
Notice his use of verbs. Most of them are in simple form, and all but
two are in the active voice. Notice the length and construction of his
sentences. Most of them contain only one main thought, and they vary
in length: the shortest is six words, and the longest is twenty-seven
words.
These and other elements of plain English style are discussed in
this article. Readers are urged to work the exercises in Appendix A
and to compare their work with the suggestions contained in Appendix
B.
I
OMIT SURPLUS WORDS
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 quietly 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."
A.
How to Spot Bad Construction
In every English sentence are two kinds of words: working words

and glue words. The working words carry the meaning of the sentence. In the preceding sentence the working words are these: working,
words, carry, meaning, and sentence. The others are glue words: the,
the, of, and the. The glue words do serve a purpose; they hold the
working words together to form a proper English sentence. But when
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. Consider this example:
A trial by jury was requested by the defendant.
If the working words are circled the sentence looks like this:
A (
by (])
was (
by the (ddant.
Five words in that nine word sentence are glue: a, by, was, by, and the.
How can we say the same thing in a tighter sentence with less glue?
First, move defendant to the front and make it the subject of the sen-
CALIFONIA.
LAW REVIEW
[Vol. 66:727
tence. Second, use jury trial in place of trial by jury. The sentence
would thus read:
The defendant requested a jury trial.
If the working words are circled, the rewritten sentence looks like this:
The defnant r
(1
Again there are four working words, but the glue words have been cut
from five to two. The sentence means the same as the original, but it is
tighter and one-third shorter.
Here is another example:
The ruling by the trial judge was prejudicial error for the reason
that it cut off cross-examination with respect to issues which
were vital.
If the working words are circled, we have:
The (
)by the
wasprdcia
for the
G
that it (E)()cross-examination with respect to
s which were (1
In a sentence of twenty-four words, eleven carry the meaning and thirteen are glue.
Note the string of words the ruling by the trialjudge. That tells us
that it was the trial judge's ruling. Why not just say the trialIjudge's
ruling? The same treatment will tighten up the words at the end of the
sentence. Issues which were vital tells us they were vital issues. Why
not say vital issues? Now note the phrase/or the reason that. Does it
say any more than because? If not, we can use one word in place of
four. Likewise, with respect to can be reduced to on. Rewritten, the
sentence looks like this:
The trial judge's ruling was prejudicial error because it cut off
cross-examination on vital issues.
Here it is with the working words circled:
The
Sross-exanaon)
was reu c
it
on
The revised sentence uses fifteen words in place of the original twentyfour, and eleven of the fifteen are working words. The sentence is both
tighter and stronger than the original.
Consider a third example, but this time use a pencil and paper to
rewrite the sentence yourself.
19781
In many instances, insofar as the jurors are concerned, the jury

instructions are not understandable because they are too poorly
written.
Does your sentence trim the phrase in many instances? Here the single
word often will suffice. Does your sentence omit the phrase insofar as
thejurorsare concerned? That adds bulk but no meaning. Finally,
did you find a way to omit the clumsy because clause at the end of the
sentence? Your rewritten sentence should look something like this:
Often jury instructions are too poorly written for the jurors to
understand.
Here it is with the working words circled:
Stru ons)
~for
the
to(ndtan.
The rewritten sentence is nine words shorter than the original, and nine
of its twelve words are working words. (See Exercise 1, Appendix A.)
B. Avoid CompoundPrepositions
Compound prepositions and their close cousins are a fertile source
of surplus words. They use several words to do the work of one or
two, and they suck the vital juices from your writing. You saw some
examples in the last section. With respect to was used instead of on.
Forthe reason that was used instead of because.
Every time you see one of these pests on your page, swat it. Use a
simple form instead. Here is a list of common ones:
COMPOUND
SIMPLE
at that point in time
then
by means of
by reason of
by
because of
by virtue of
for the purpose of
for the reason that
from the point of view of
in accordance with
by, under
inasmuch as
in connection with
in favor of
since
with, about, concerning
for
in order to
in relation to
to
to
because
from, for
by, under
about, concerning
[Vol. 66:727
in terms of
in the event that
in the nature of
on the basis of
by, from
prior to
before
subsequent to
after
with a view to
to
with reference to
about, concerning
with regard to
about, concerning
with respect to
on, about
(See Exercise 2, Appendix A.)
Trim Out Verbose Word Clusters
Once you develop a dislike for surplus words, you will fmd many
common word clusters that can be trimmed from your sentences with
no loss of meaning. Consider this example:
The fact that the defendant was young may have influenced the
jury.
What meaning does thefact that add? Why not say:
The defendant's youth may have influenced the jury.
Thefact that is almost always surplus.
from these examples:
VERBOSE
the fact that she had died

he was aware of the fact that
despite the fact that
because of the fact that
See how it can be trimmed

PLAIN
her death
he knew that
although, even though
because
Likewise, the words case and instance spawn verbosity:

VERBOSE
in some instances the parties can

in many cases you will find
that was an instance in which the
court
discrimination claims are more
frequent than was formerly the
case
injunctive relief is required in the
case of
PLAIN
sometimes the parties can

often you will find
there the court
discrimination claims are more
frequent now
intunctive relief is required
whenc
1978]
in the majority of instances the

landowner has
it is not the case that she wrote
the letter
usually the landowner has

she did not write the letter
Here are other examples of common word clusters you can eliminate with no loss of meaning:
PLAIN
VERBOSE
during the time that

for the period of
in accordance with
insofar as ...
is concerned
there is no doubt but that

the question as to whether
this is a topic that
until such time as
during, while
for
by, under
(omit it entirely and start with
the subject)
doubtless, no doubt
whether, the question whether
this topic
until

D. How to Shorten Clauses andPhrases
One remedy for rambling sentences is to cut clauses down to
phrases. Here is an example:
While the trial was in progress, the judge excluded photographers from the courtroom.
The six word clause at the beginning can be cut to a three word phrase:
During the trial, the judge excluded photographers from the
courtroom.
The words which, who, and that often signal an opportunity to reduce a clause to a phrase:
CLAUSE
PHRASE
The question was designed to

impeach the prosecution witness,
who had been convicted of having committed a felony.
The question was designed to

impeach the prosecution witness, a convicted felon.
The statute, which had been

enacted after the Alyeska case,
authorized the fee award.
The statute, enacted after the

A4lyeska case, authorized the
fee award.
The title search did not disclose

the easement that had been
granted six years before.
The title search did not disclose the easement granted six
years before.
When. you see the words it is and there are, stop to see if you can
replace a clause by a shorter construction:

VERBOSE
[Vol. 66:727
PLAIN
There are three key paragraphs in

the pretrial order.
The pretrial order has three

key paragraphs.
It is possible for the court to take

judicial notice of its own records.
The court can take judicial

notice of its own records.
Despite the legislative history,

there are doubts about the intent
of Congress.
Despite the legislative history,

the intent of Congress is in
doubt.
Sometimes you can clean out surplus words by replacing a clause with
an adjective or adverb:
VERBOSE
PLAIN
The trial judge denied the

defendant's motion, which asked
for summary judgement.
The trial judge denied the

defendant's summary judgment
motion.
The plaintiff rejected the offer

made by the defendant to settle
the case for $10,000.
The decree which was entered in
January ordered payments to be
made each month for child support.
The plaintiff rejected the

defendant's $10,000 settlement
offer.
The January decree ordered
monthly child support payments.

E. Do Not Use Redundant Legal Phrases
Why do lawyers use the term null and void? According to the
dictionary, either null or void by itself would do the job. But the lawyer's pen seems impelled to write null and void, as though driven by
primordial instinct. An occasional lawyer, perhaps believing that null
and void looks naked by itself, will write totally null and void, or
perhaps totally null and void andofnofurtherforceor effect whatsoever.
Null and void is a lawyer's tautology-a needless string of words
with the same or nearly the same meaning. Here are other common
examples:
alter or change
last will and testament
cease and desist
made and entered into
confessed and acknowledged
order and direct
convey, transfer, and set over
perform and discharge
for and during the period
rest, residue, and remainder
force and effect
save and except
free and clear
suffer or permit
full and complete
true and correct
give, devise, and bequeath
undertake and agree
good and sufficient
unless and until
kind and character
1978]
PLAIN ENGLISH FOR LA1YERS
Lawyer's tautologies have ancient roots. Professor Mellinkoff explains9 that, at several points in history, the English and their lawyers
had two languages to choose from: first, a choice between the language
of the Celts and that of their Anglo-Saxon conquerors; later, a choice
between English and Latin; and later still, a choice between English
and French. Lawyers started using a word from each language, joined
in a pair, to express a single meaning. (For example, free and clear
comes from the Old Englishfreo and the Old French cler.) This redundant doubling was used sometimes for clarity, sometimes for emphasis, and sometimes just because it was the fashion. Doubling
became traditional in legal languge and persisted long after any practical purpose was dead.
Ask a modem lawyer why he or she uses a term like suffer or
permit in a simple real estate lease. The first answer likely will be: "for
precision." True, there is a small difference in meaning between suffer
and its companion permit. But suffer in this sense is now rare in ordinary usage, andpermit would do the job if it were used alone.
The lawyer might then tell you that suffer orpermit is better because it is a traditional legal term of art. Traditional it may be, but a
term of art it is not. A term of art is a short expression that (a) conveys
a fairly well-agreed meaning, and (b) saves the many words that would
otherwise be needed to convey that meaning. Suffer orpermit fails to
satisfy the second condition, and perhaps the first as well. The word
hearsay is an example of a true term of art. First, its core meaning is
fairly well-agreed in modem evidence law, although its meaning at the
margin has always inspired scholarly debate.10 Second, hearsay enables a lawyer to use one word instead of many to say that a statement
is being offered into evidence to prove that what it asserts is true, and
that the statement is not one made by the declarant while testifying at
the trial or hearing. Any word that can say all that deserves our praise
and deference. But suffer orpermit does not.
In truth, suffer orpermit probably found its way into that real estate lease because the lawyer was working from a form that had been
used around the office for years. The author of the form, perhaps long
dead, probably worked from some even older form that might, in turn,
have been inspired by a formbook or some now defunct appellate case
where the phrase was used but not examined.
If you want your legal writing to have a musty, formbook smell, by
all means use as many tautological phrases as you can find. If you
D. MELLINKOFF, supra note 1, at 38-39, 121-22.
Compare FED. R. EviD. 801(c) and CAL. EviD. CODE 1200 (West 1966) with C. McCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 246 (2d ed. E. Cleary 1972).
9.
10.
CALIFORNIIA LW REVIEW
[Vol. 66:727
want it to be crisp, do not use any. When one looms up on your page,
stop to see if one of the several words, or perhaps a fresh word, will
carry your intended meaning. You will find, for example, that the
phrase last will andtestament can be replaced by the single word will."
This is not as simple as it sounds. Lawyers are busy, cautious
people. The redundant phrase has worked in the past; a new one
might somehow raise a question. To check it in the law library will
take some time. But remember-once you slay one of these old monsters, it will stay dead for the rest of your career. If your memory is
short, keep a card file of slain redundancies. Such trophies distinguish
a lawyer from a scrivener. (See Exercise 5, Appendix A.)
II
USE FAMmIIAR, CONCRETE WORDS
Here are two ways a lawyer might write to a client to explain why
the lawyer's bill is higher than the client expects.
Example One: The statement for professional services which you will
find enclosed herewith is, in all likelihood, somewhat in excess of your
expectations. In the circumstances, I believe it is appropriate for me to
avail myself of this opportunity to provide you with an explanation of

the causes therefor. It is my considered judgment that three factors are
responsible for this development. Primary among them is the mutually unanticipated expenditure of time which is being necessitated by
the litigation involved herein. To wit, the counsel retained on behalf
of the several parties defendant is endeavoring, perhaps in emulationem
vicini,to effect depletion of our resources and destruction of our morale
by undertaking deposition proceedings with the purpose of obtaining
testimony from numerous deponents whose factual knowledge with respect to the instant litigation is negligible at best ....
Example Two: The bill I am sending you with this letter is probably
higher than you expected, and I would like to explain the three reasons
why. First, the case is taking more time than either you or I expected.
The defendants' lawyer, perhaps driven by spite, is trying to wear us
down by taking the pretrial testimony of many persons who know little,
if anything, about the facts ....
Example Two is better, is it not? Look at the choice of words in

Example One.
Why does its author say statement for professional
services instead of bill? The client calls it a bill. So does the lawyer,
usually. By tradition, the bill itself can be captioned statementforpro11. Historically, will referred to the disposition of realty and testament to personalty. See
W. PAGE, WILLS 1.3 (Bowe-Parker rev. ed. 1960). Today, will suffices for both realty and
personalty. See, eg., CAL. PROB. CODE 20 (West Supp. 1978).
1978]
fessionalservices. But this is supposed to be a friendly, candid letter to

a client: let us call a bill a bill.
Look at the words that give Example One the stink of old law
books: herewith, therefor, herein, severalpartiesdefendant, to wit, and in
emulationem vicini. None of them is necessary here, if indeed they are
necessary at all in a modem lawyer's vocabulary. Look at the airy,
abstract words: circumstances,factors,development. What do they add
here? Finally, look at the number of times Example One uses ponderous phrases instead of the familiar, simple woids used in Example
Two:
EXAMPLE Two
EXAMPLE ONE
probably
in all likelihood
higher than you expected
in excess of your expectations
explain why
explanation of the causes
more time than you or I
mutually unanticipated expendiexpected
ture of time
defendants' lawyer
counsel retained on behalf of the
several parties defendant
endeavoring to effect depletion of trying to wear us down
our resources and destruction of
our morale
many persons
numerous deponents
know little, if anything
factual knowledge. . . is negligible
A.
Use Concrete Words
To grip and move your reader's mind, use concrete words, not abstractions. To see the difference, suppose that Moses's plagues on
Egypt had been described in the language of a modem environmental
impact report:
EXODus 8:7
[A]s the Lord commanded...

he lifted up the rod and smote
the waters of the river. . . and
all the waters that were in the
river were turned to blood. And
the fish that were in the river
died; and the river stank, and the
Egyptians could not drink the
waters of the river, and there was
blood throughout all the land of
Egypt.
ALTERED VERSION
In accordance with the directive theretofore received from

higher authority, he caused the
implement to come into contact with the water, whereupon
a polluting effect was perceived. The consequent toxification reduced the conditions
necessary for the sustenance of
the indigenous population of
aquatic vertebrates below the
level of continued viability.
Olfactory discomfort standards
were substantially exceeded,
and potability declined.
Social, economic and political
disorientation were experienced
to an unprecedented degree.
[Vol. 66:727
The lure of abstract words is strong for lawyers. Lawyers want to

be cautious and to cover every possibility, while leaving room to wiggle
out if necessary. The vagueness of abstract words therefore seem attractive. Particularly attractive are words like basis,situation, consideration,facet, character,factor, degree, aspect, and circumstances:
In our present circumstances, the budgetary aspect is a factor
which must be taken into consideration to a greater degree.
Perhaps that means "now we must think more about money," but the
meaning is a shadow in the fog of abstract words.
Do not mistake abstraction of that sort for the intentional, artful
vagueness sometimes required in legal writing. For example, judicial
opinions sometimes use an intentionally vague phrase to provide a general compass heading when it is not possible to map the trail in detail.
In Bates v. State Bar ofArizona'2 the Supreme Court announced that
lawyer advertising is protected by the free speech clause of the first
amendment. The Court wanted to tell the states that they could regulate lawyer advertising some, but not too much. The Court could not
then tell how much would be too much, so it said that states may impose "reasonablerestrictionson the time, place and manner" of lawyer
advertising. 3 The phrase is intentionally vague. It gives general guidance, but it postpones specific guidance until specific facts come
before the Court in later cases. Intentional vagueness is likewise used
in drafting statutes, contracts, and the like, when the drafter cannot
foresee every specific set of facts that may arise. But vagueness is a
virtue only if it is both necessary and intentional. Knowing when to be
vague and when to press for more concrete terms is part of the art of
lawyering.
B.
Use Familiar Words
Aristotle put the case for familiar words this way: "Style to be
good. must be clear, as is proved by the fact that speech which fails to
convey a plain meaning will fail to do just what speech has to do ...
Clearness is secured by using the words. . . that are current and ordinary.""4 Given a choice between a familiar word and one that will
send your reader groping for the dictionary, use the familiar word. The
reader's attention is a precious commodity, and you cannot afford to
waste it by creating your own distractions.
12.
433 U.S. 350 (1977).
13. Id. at 384 (emphasis added).

14. ARISTOTLE, Rhetoric 1404b, in II THE WORKS OF ARISTOTLE (W. Ross ed. 1946).
19781
Unlike many kinds of writers, attorneys usually know who their

readers will be, and their choice of words can be tailored accordingly.
A patent lawyer who is writing a brief to be filed in the United States
Court of Customs and Patent Appeals can use words that would be
perplexing if used in a letter to the inventor-client. Conversely, in
writing to the inventor-client, the patent lawyer might use words that
would be gibberish if used in a legal brief. In either case, the convenience of the reader must take precedence over the self-gratification of
the writer.
Even among familiar words, prefer the simple to the stuffy. Don't
say termination if end will do as well. Don't use expedite for hurry, or
elucidate for explain, or utilize for use. Do not conclude from this that
your vocabulary should shrink to preschool size. If an unfamiliar word
is fresh and fits your need better than any other, use it-but don't
utilize it. (See Exercise 6, Appendix A.)
C. Do Not Use Lawyerisms
Lawyerisms are words like aforementioned, whereas, res gestae,
and hereinafter. They give writing a legal smell, but they carry little or
no legal substance. When they are used in writing addressed to nonlawyers, they baffle and annoy. When used in other legal writing, they
give a false sense of precision and sometimes obscure a dangerous gap
in analysis.
A lawyer's words should not differ without reason from the words
used in ordinary English. Sometimes there is a reason. For example,
the Latin phrase res ipsa loquitur has become a term of art 5 that lawyers use to communicate among themselves, conveniently and with a
fair degree of precision, about a tort law doctrine. 6 But too often lawyers use Latin or archaic English phrases where there is no need.
Sometimes they do it out of habit or haste-the old phrase is the one
they learned in law school, and they have never taken time to question
its use. Other times they do it believing mistakenly that the old
phrase's meaning cannot be expressed in ordinary English, or that the
old phrase is somehow more precise than ordinary English.
Consider, for example, the word said in its archaic use as an adjective. No lawyer in dinner table conversation says: "the green beans
are excellent; please pass said green beans." Yet legal pleadings come
out like this:
The object of said conspiracy among said defendants was to fix said
retail prices of said products throughout said State of New York.
15.
See Part IF supra.
16.
See RESTATEMENT
(SECOND) OF TORTS
328D, comments a and b (1965).
[Vol. 66:727
Lawyers who have an affinity for said claim it is more precise than
ordinary words like the, or this, or those. They say it means "the exact
same one mentioned above." But the extra precision is either illusory
or unnecessary, as the example above shows. If only one conspiracy
has been mentioned in the preceding material, there is no danger of our
mistaking this conspiracy for some other conspiracy, and saidis unnecessary. If more than one conspiracy has been previously mentioned,
saiddoes not tell us which of the several is meant. The extra precision
is thus illusory. If the were put in place of all the said's, the sentence
would be no less precise and much less clumsy.
Aforementioned is said's big brother, and it is just as useless. "The
fifty acre plot aforementioned shall be divided. . . ." If only one fifty
acre plot has been mentioned before, then aforementioned is unnecessary, and if more than one fifty acre plot has been mentioned before,
then aforementionedis imprecise. When precision is important, use a
specific reference: "The fifty acre plot described in paragraph 2(f) shall
be divided. . ....
Res gestae is an example of a Latin lawyerism that can obscure a
dangerous gap in analysis. Translated, it means "things done." In the
early 1800's, it was used to denote statements that were made as part of
the transaction in issue (the "things done") and that were therefore admissible in evidence despite the hearsay rule. Perhaps because res
gestae is far removed from ordinary English, lawyers and judges began
to treat it as a ragbag. They used it carelessly to cover many different
kinds of statements made at or about the time ,ofthe transaction in
issue. 7 With policy and analysis obscured, res gestae became little
more than a label to express the conclusion that a particular statement
ought to be admitted into evidence over hearsay objection. Wigmore
said: "The phrase "res gestae" has long been not only entirely useless,
but even positively harmful. . . . It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates
uncertainty as to the limitations of both.""' The moral is this: Do not
be too impressed by the Latin and archaic English words you read in
law books. Their antiquity does not make them superior. When your
pen is poised to write a lawyerism, stop to see if your meaning can be
expressed as well or better in a word or two of ordinary English. (See
Exercise 7, Appendix A.)
17. See, ag., cases described in Showalter v. Western Pacific R.R., 16 Cal.2d 460, 106 P.2d
895 (1940).
18. 6 J. WIGMORB, EVIDENCE 1767 at 255 (Chadbourne rev. ed. 1976).
1978]
III
USE SHORT SENTENCES
For several hundred years, English speaking lawyers have been

addicted to long, complicated sentences. The long sentence habit began when English had no regular system of punctuation. But in law,
the habit persisted long after orderly division of thoughts had become
routine in ordinary English prose. When lawyers write, they deliver to
the reader in one gigantic package all their main themes, supporting
reasons, details, qualifications, exceptions, and conclusions. In particular, statutes and regulations wind on line after line, perhaps on the theory that if the readers come to a period they will rush out to violate the
law without bothering to read on to the end. For example, here is
section 631(a) of the California Penal Code:
Any person who, by means of any machine, instrument, or contrivance,
or in any manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, accoustically, inductively, or
otherwise, with any telegraph or telephone wire, line, cable, or instrument of any internal telephonic communications system, or who willfully and without consent of all parties to the communication, or in any
unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the
same is in transit or passing over any such wire, line or cable, or is
being sent from or received at any place within this state; or who uses,
or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with,
employs, or conspires with any person or persons to unlawfully do, or
permit, or cause to be done any of the acts or things mentioned above
in this section, is punishable by a fine not exceeding two thousand five
hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison not exceeding
such fine and imprisonment in the county jail or
three years, or by both
19
prison.
state
the
in
That sentence contains 242 words and no fewer20than eighteen separate
thoughts. Little wonder it is hard to swallow.
A.
Short Sentences Aid Comprehension
Long sentences make legal writing hard to understand. To prove

this to yourself, read the following passage once at your normal speed.
Then ask yourself what it means.
In a trial by jury, the court may, when the convenience of witnesses or
the ends of justice would be promoted thereby, on motion of a party,
after notice and hearing, make an order, no later than the close of the
19.
CAL. PEN. CODE 631(a) (West 1970).
20. The leading candidate for longest statutory passage, 341(e)(1) of the Internal Revenue
Code, contains 522 words.
CALIFORNI4 L4W REVIEW
[Vol. 66:727
pretrial conference in cases in which such pretrial conference is to be

held, or, in other cases, no later than 10 days before the trial date, that
the trial of the issue of liability shall precede the trial of any other issue
in the case . .. 21
The subject matter of that passage is not profound or complicated, but
the passage is hard to understand. It consists of a single sentence,
eighty-six words long, containing five pieces of information. It tells us
that:
(1) in a jury case, the liability issue may be tried before any other
issue;
(2) the judge may order this if it will serve the convenience of witnesses or the ends of justice;
(3) the order may be made on a party's motion, after notice and hearing;
(4) in a case with a pretrial conference, the order must be made before
the end of the conference; and
(5) in a case with no pretrial conference, the order must be made at
least ten days before the trial date.
The passage is hard to understand for two reasons. First, the single sentence format caused the author to distort the logical order of the
five pieces of information. The first thing the readers want to know is
what the passage is about. It is about the trial of the liability issue
before the other issues. But the readers do not discover that until they
have climbed through a thicket of subsidiary ideas and arrived at the
last twenty words of the sentence. Second, the single sentence" format
strains the readers' memories. The subject of the sentence (court) appears at word seven. At word thirty-two, the verb (make) finally
shows up. Part of the object (an order) comes next, but the critical part
remains hidden until the readers arrive, breathless, at word sixty-eight.
By then they have forgotten the subject and verb and must search back
in the sentence to find them.
The remedy for such a passage is simple. Instead of one long sentence containing five thoughts, use five sentences, each containing one
thought. Here is one way the passage could be rewritten:
In a jury case, the court may order the liability issue to be tried before
any other issue. This may be done if the court finds that it would serve
the convenience of witnesses or the ends of justice. The order may be
made on the motion of a party, after notice and hearing. In cases
where a pretrial conference is held, the order must be made before the
end of the conference. In other cases the order must be made at least
ten days before the trial date.
21. CAL. Crw. PRoc. CoDE 598 (West 1976) (amended 1977).
1978]
PLAIN ENGLISH FOR LA4W'YERS
In place of one eighty-seven-word sentence, we now have five sentences

with an average length of eighteen words. Each sentence contains only
one main thought, and the thoughts follow in logical sequence.
.
A Guide to Clarity
Passages like the one above suggest a two-part guide to clarity and
ease of understanding in legal writing:
(1) In most sentences, put only one main thought.
(2) Keep the average sentence length below twenty-five words.
Do not misinterpret this guide. The first part says that most
sentences should contain only one main thought. It does not say that
every sentence should contain only one main thought. The second
part says that the average length of your sentences should be below
twenty-five words. 2 It does not say that every sentence should be
twenty-five words or less. A succession of short, simple sentences
sounds choppy:
Defense counsel objected to the question. She argued that it called for
hearsay. The court overruled the objection. The witness was allowed
to answer.
You need an occasional longer sentence in which two or more main
thoughts are joined.
Defense counsel objected to the question, arguing that it called for
hearsay; the court overruled the objection, and the witness was allowed
to answer.
But when you write a long sentence, bear in mind Mark Twain's advice. After recommending short sentences as the general rule, he added:
At times [the writer] may indulge himself with a long one, but he will
make sure that there are no folds in it, no vaguenesses, no parenthetical
interruptions of its view as a whole; when he has done with it, it won't
be a sea-serpent with half of its arches under the water, it will be a
torch-light procession.'
22. To measure the length of your sentences, pick a sample passage and count the number of
words from one period to the next. Count hyphenated words and groups of symbols as one word.
Do not count citations. For example, this sentence would be counted as 20 words:
9
10 11
12 13
3
4
5
6
7
8
1
2
The twin-drive concept was obvious from IBNfs '497 patent; under the Graham test, 382
14 15
16 17
18
19 20
U.S. at 17-18, that is enough to invalidate Claim 12.
When you measure a tabulated sentence (see p.744, infra), regard the initial colon and the semicolons as periods. See generally T. BERNSTEIN, WATCH YouR LANGUAGE 111-21 (Atheneum paperback ed. 1976); R.FL.scI-I, TH ART OF PLAIN TALK 49-57 (Collier paperback ed. 1951); Fry,
A ReadabilityFormula That Saves Time, 11 JoURNA. OF READING 513 (1968).
23. As quoted in E. GowERs, THE COMPLETE PLAIN WORDS 183 (Fraser rev. ed. 1973).
CALIFORNVIAlI4W REVIEW
[Vol. 66:727
C. Use Tabulation to Split Up Long Sentences

Sometimes the shortest, clearest way to present a complicated
piece of material is in one long sentence, split up like a laundry list.
This device is called tabulation. You will see one example on page 742,
above. Here is another, a statement of the damage rules followed in
contract interference cases:
One who is liable to another for interference with a contract or a prospective advantageous economic relation is liable for damages for:
(a) the pencuniary loss of the benefits of the contract or the prospective relation;
(b) other pecuniary loss for which the interference is a legal cause;
and
(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.2 4
25
When you tabulate, follow these conventions:
(1) The items in the list must be of the same class. (Don't make a list
of (a) bread, (b) eggs, and (c) Czar Nicholas II.)
(2) The items in the list must fit, in substance and grammar, with the
material in front of the colon. If the sentence continues past the
last item in the list, the concluding material must fit also.
(3) The items in the list should be indented to set them apart from the
material before and after.
(4) The items in the list should begin with a lower case letter.
(5) If the last item in the list is the end of the sentence, it should end
with a period. If it is not the end of the sentence, it should end
with a semicolon.
(6) The next-to-last item in the list should end with a semicolon followed by or (if the list is disjunctive) or and (if the list is conjunctive.)
26
(7) The other items in the list should end with semicolons.
As the preceding paragraph shows, you can also use tabulation to
bring order to a series of related, complete sentences. Use the preceding paragraph as a guide to the conventional form and punctuation of
that type of tabulation.
24. RESTATEMENT (SECOND) OF TORTS 774A(l) (Tent. Draft No. 23, 1977).
25. See R. DICKERSON, THE FUNDAMENTALS OF LEGAL DRAFINo 85-86 (1965).
26. When the items on the list are complicated you can put ";and" or ";or" after each item in
the list except the last. That helps the reader stay on track. See, e.g., 'the Federal Rules of
Evidence.
1978]
IV
USE BASE VERBS AND THE ACTIVE VOICE
These two passages say the same thing. Which of them do you
prefer?
Passage One. The conclusion which has been reached by my client is
that if there is a continuation of your insistence on this position, the
termination of the contract will be taken into serious consideration by
her.
PassageTwo: My client has concluded that if you continue to insist on
this position, she will seriously consider terminating the contract.
Passage Two is better, is it not? Passage One clanks along like a rusty
tank. It is an overblown example of two common legal writing faults:
(1) the writer has overused the passive voice, and (2) the writer has
converted crisp base verbs (like continue) into sodden derivative nouns
(like continuation).
A.
Base Verbs v. Derivative Nouns andAdjectives
At its core, the law is not abstract; it is part of a real world full of
people who live and move and do things to other people. Car drivers
collide. Plaintiffs complain. Judges decide. Defendants pay. To express this life and motion, a writer must use verbs-action words. The
purest verb form is the base verb, like collide, complain, decide, and
pay. Base verbs are simple creatures. They cannot tolerate adornment.
If you try to dress them up, you squash their life and motion. Unfortunately, that is done all too easily. The base verb collide can be decked
out as a derivative noun, collision. Likewise, complain becomes complaint, decide becomes decision, andpay becomes payment. Lawyers
love to ruin base verbs. Lawyers don't act-they take action. They
don't assume-they make assumptions.They don't conclude-they draw
conclusions. With too much of this, legal writing becomes a lifeless
vapor.
When a base verb is replaced by a derivative noun or adjective,
surplus words begin to swarm like gnats. "Please state why you object
to the question," comes out like this: "Please make a statement of why
you are interposingan objection to the question." The base verb state
can do the work all alone. But to get the same work out of statement,
you need a supporting verb (make), an article (a), and a preposition
(of). The derivative noun objection attracts a similar cloud of surplus
words.
Do not conclude from this that derivative nouns and adjectives are
always bad; sometimes you need them. But do not overuse them in.
place of base verbs. You can spot the common ones by their endings:
[Vol. 66:727
-ment, -ion, -lion, -ance, -ence, -ancy, -ency, -ant, and -ent. When you
spot one, stop to see if you can make your sentence stronger and shorter
by using a base verb instead. (See Exercise 10, Appendix A.)
B. The Active Voice v. The Passive Voice
When you use the active voice, the subject of the sentence acts:
"The union filed a complaint." When you use the passive voice, the
subject of the sentence is acted upon: "A complaint was filed by the
union."
The passive voice has two disadvantages. First, it takes more
words. When you say, "the union filed a complaint," filed does the
work by itself. But when you say, "a complaint was filed by the
union," the verbfiled requires a supporting verb (was) and a preposition (by). Here are other examples:
PASSIVE VOICE
the ruling was made by the trial

judge that
our interpretation is supported by
the legislative history
the trust was intended by the
trustor to
ACTIVE VOICE
the trial judge ruled that

the legislative history supports
our interpretation
the trustor intended the trust to
The second disadvantage of the passive voice is its detached abstraction. With the active voice, the reader can usually see who is doing what to whom. But the passive voice often leaves that unclear:
It is feared that adequate steps will not be taken to mitigate the damages which are being caused.
Who is doing the fearing? Who is supposed to take the steps? Who is
causing the damages? We cannot tell because the actor in each case is
hidden in the fog of the passive voice.
The passive voice can be particularly noxious in technical legal
writing. Consider this patent license provision:
All improvements of the patented invention which are made hereafter
shall promptly be disclosed, and failure to do so shall be deemed a
material breach of this license agreement.
Who must disclose what to whom? Must the licensee disclose improvements it makes to the licensor? Must the licensor disclose improvements it makes to the licensee? .Must each party disclose the
improvements it makes to the other party? If it ever becomes important, the parties probably will have to fight it out in an expensive lawsuit.
The passive voice has its proper uses. First, you can use it when
the thing done is important, and the one who did it is not:
1978]
The summons and complaint were served on January 19th.

Second, you can use it where the actor is unknown or indefinite:
The ledgers were mysteriously destroyed.
Third, you can use it to place a strong element at the end of the sentence for emphasis:
In the defendant's closet was found the bloody coat.
Fourth, you can use it on those rare occasions when detached abstraction is appropriate:
All people were created with a thirst for knowledge.
But elsewhere, use the active voice; it will make your writing stronger,
briefer, and clearer. (See Exercise 11, Appendix A.)
V
ARRANGE YOUR WORDS WITH CARE
In some languages, the order of words within a sentence does not
affect the sentence meaning. But in English, word order does affect
meaning, as this sentence shows:
The defendant was arrested for fornicating under a little-used
state statute.
To avoid that sort of gaffe, you must take care in arranging your words.
A.
Normal Word Order and InversionforEmphasis
To make your writing easy to understand, most of your sentences

should follow the normal English word order-first the subject, then
the verb, and then the object (if there is one):
The complaint wasfiled.
The defendantfiled a demurrer.
(subec
=
(ect
If you want to emphasize a word, the strongest place to put it is at the

end of the sentence. The next-strongest place is at the beginning of the
sentence. Suppose that in this sentence you want to emphasize the
word conspiracy:
Plaintiffs complaint makes a conspiracy charge against the defendants.
One way is to put conspiracy at the beginning of the sentence:
Conspiracy is charged in plaintiffs complaint against defendants.
CALIFORNIA LAWREVIEW
[Vol. 66:727
But the emphasis is stronger if you put conspiracy at the end of the
sentence:
Plaintiffs complaint charges the defendants with conspiracy.
Note that in each of the three sentences the subject comes before the
verb. On rare occasion, you may want to place extra stress on the subject by inverting the normal word order and putting the subject at the
end of the sentence:
Basic to our liberties is fair procedure.
C. Keep the Subject Close to the Verb and
the Verb Close to the Object
Lawyers like to test the agility of their readers by making them

leap wide gaps between the subject and the verb and between the verb
and the object. For example:
A claim, which in the case of negligent misconduct shall not exceed
$500, and in the case of intentional misconduct shall not exceed $1,000,
may be filed with the Office of the Administrator by any injured party.
In that sentence the reader must span a twenty-two-word crevasse to
get from the subject (claim) to the verb (may befiled). The best remedy for a gap this wide is to turn the intervening words into a separate
sentence:
Any injured party may file a claim with the Office of the Administrator. A claim shall not exceed $500 for negligent misconduct, nor
$1,000 for intentional misconduct.
Smaller gaps between subject and verb can be closed by moving the
intervening words to the beginning or end of the sentence:
GAP
This agreement, unless revocation

has occurred at an earlier date,
shall expire on November 1,
1989.
The defendant, in addition to
having to pay punitive damages,
may be liable or plaintiffs costs
and attorney fees.
GAP CLOSED
Unless sooner revoked, this

agreement shall expire on
November 1, 1989.
The defendant may have to
pay plaintiffs costs and attorney fees, in addition to punitive damages.
The problem is the same when the gap comes between the verb
and the object:
The proposed statute gives to any person who suffers financial injury
by reason of discrimination based on race, religion, sex, or physical
handicap a cause of action for treble damages.
PLAIN ENGLISH .FOR LAWYERS
19781
Here a twenty-one word gap comes between the verb (gives) and the
direct object (cause of action). One remedy is to make two sentences.
Another is to move the intervening words to the end of the sentence:
The proposed statute gives a cause of action for treble damages to any
person who suffers financial injury by reason of discrimination based
on race, religion, sex, or physical handicap.
D
Put Modifying Words Close to What They Modfy
Modifying words tend to do their work on whatever you put them

near. For example, this sentence conveys three different pictures, depending on where you put the modifier:
The judge ordered the marshal to eject the photographer.
(who was kicking and screaming j
As a general rule, put modifying words as close as you can to what you
want them to modify. That will help avoid sentences like these:
My client has discussed your proposal to fill the drainage ditch
with his partners.
The defendant is accused of assaulting Professor Appleman
while he was teaching a class maliciously and with intent to do
great bodily harm.
Being beyond any doubt insane, Judge Weldon ordered the petitioner's transfer to a state mental hospital.
Beware of the "squinting" modifier--one which sits mid-sentence
and can be read to modify either what precedes it or what follows it:
A trustee who steals dividends often cannot be punished.
What does often modify? Does the sentences tell us that crime frequently pays? On that frequent crime pays? Squinting modifiers are
especially mischievous in technical legal instruments:
If this contract is terminated under paragraph 3(d)(1), Agent
shall be notified immediately to cancel all outstanding
workorders.
What must be immediate, the notice or the cancellation?
Once discovered, a squinting modifier is easily cured. Either
choose a word that does not squint, or rearrange the sentence to avoid
the ambiguity. In the last example, immediately could be put before
notfied or after cancel, whichever would express the parties' intent.27
27. You might also put immediatel, between to and cancel,but that would needlessly dis-
CALIFONIIA L4W REVIEW
[Vol. 66:727
The word only is a notorious troublemaker in legal writing. For

example, in this sentence, the word only could go in any of seven places
and produce a half a dozen different meanings:
She said that he shot her.
To keep only under control, put it immediately before the word you
want it to modify. If it creates ambiguity in that position, try to isolate
it at the beginning or the end of the sentence:
AMBIGUOUS
CLEAR
Lessee shall use the vessel only

for recreation.
Shares are sold to the public only
by the parent corporation,
Lessee shall use the vessel for

recreation only.
Only the parent corporation
sells shares to the public.
Watch out for ambiguity in sentences like this one:

The grantor was Maxwell Aaron, father of Sarah Aaron, who
later married Pat Snyder.
Who married Pat-Maxwell or Sarah? Some lawyers try to clear up
such ambiguity by piling on more words:
The grantor was Maxwell Aaron, father of Sarah Aaron, which
said Maxwell Aaron later married Pat Snyder.
But it's easier than that. You can usually avoid ambiguity by placing
the relative pronoun (like who, which, and that) right after the word to
which it relates. If Pat's spouse were Maxwell, the sentence could be
rearranged to read:
The grantor was Sarah Aaron's father, Maxwell Aaron, who
later married Pat Snyder.
Sometimes a relative pronoun will not behave, no matter where you
put it:
Claims for expenses, which must not exceed $100, must be made
within 30 days.
What must not exceed $100-the claims or the expenses?
best remedy is simply to cut out the relative pronoun:
Here the
Claims for expenses must not exceed $100 and must be made
within 30 days.
or
Expenses must not exceed $100. Claims for expenses must be

made within 30 days.
tract readers who believe that infinitives should not be split. Those same readers will be distracted if you end a sentence with a preposition when you do not need to.
1978]
VI
AVOID LANGUAGE
QUIRKS
Language quirks are small distractions that draw your reader's

mind from what you are saying to how you are saying it. Most of what
lawyers write is read by people, not because they want to, but because
they have to. Their attention is, therefore, prone to wander. Further,
they are usually surrounded by outside distractions-the ring of the
telephone, the cough at the library table, and the clock that tells them
time is short. Language quirks add to those distractions and are thus
to be avoided.
A.
Elegant Variation
Elegant variation" is practiced by writers whose English teachers

told them not to use the same word twice in one sentence. The practice
produces sentences like this:
The first case was settled for $2,000, and the second piece of
litigation was disposed of out of court for $3,000, while the price
of the amicable accord reached in the third suit was $5,000.
The readers are left to ponder the difference between a case, apiece of
litigation, and a suit. By the time they conclude that there is no difference, they have no patience left for settled, disposed of out of court, and
amicable accord,much less for what the writer was trying to tell them
in the first place.
Elegant variation is particularly vexing in technical legal writing.
The reader of a formal instrument is entitled to assume that a shift in
terms is intended to signal a shift in meaning, and the reader is justifiably puzzled at passages like this:
The use fee shall be 1% of Franchisee's gross revenue.
Franchise payments shall be made on or before the 15th day of
each month.
Are franchisepayments something differ than the usefee? If so, what
are they, and when must the use fee be paid?
Do not be afraid to repeat a word if it is the right word and if
repeating it will avoid confusion. If the repetition sounds clumsy, try a
pronoun or recast the sentence:
The arresting officers did not
The arresting officers did not
inform the defendant of her right inform the defendant of her
to remain silent, and the arresting right to remain silent, and they
28. H. FowLER, A
1965).
DICTIONARY OF MODERN ENGLISH USAGE
148-51 (2d ed. E. Gowers
CALIFORNiA LAW REVIEW
officers did not permit the

defendant to call her lawyer.
The plaintiff alleges that he was
deprived of his rights under the
first amendment and under the
fourteenth amendment.
[Vol. 66:727
did not permit her to call her

lawyer.
The plaintiff alleges that he
was deprived of his rights
under the first and fourteenth
amendments.
Only slightly less confusing than elegant variation is the use of a

word in one sense and its repetition shortly after in a different sense:
The majority opinion gives no consideration to appellant's argument that no consideration was given for the promise.
The remedy is obvious-replace one of the pair with a different term:
The majority opinion ignores appellant's argument that no consideration was given for the promise.
B. Noun Chain Confusion Avoidance Technique
As the heading of this section demonstrates, a long chain of nouns
used as adjectives is apt to strangle the reader. Military writers are
fond of noun chains. They have their radiationcontaminationdetection
devices, their retrogrademotion simulation capabilities, and their programmedprecounterinsurgencycountermeasures. Lawyers are not immune. They have been known to make cease and desist order
compliance investigationreports and to filepretrialdocument identi/?cation request objections.
To bring a noun chain under control, lop off any of the descriptive
words that are unnecessary. If that is not enough, then insert some
words to break up the chain, like this: "objections to the request for
pretrial identification of documents."
C Sexism in Legal Writing
The time has passed when legal writers can pretend that the world
is inhabited by males only. Women are tired of being told that "words
importing the masculine gender include the feminine as well." 9 But
writing genderless English is not easy. If you write "each judge has his
own ideals," you will be faulted for ignoring the women on the bench.
If you write "each judge has his or her own ideals," you will be faulted
for clumsy construction. If you write "all judges have their own ideals," you will be faulted for not stating clearly what you mean.
Nonetheless, the sex bias of our language can be mitigated in several ways:
29. 1 U.S.C. 1 (1970).
1978]
(1)
Avoid expressions that imply value judgments based on sex:

a man-size job
a manly effort
took it like a man
a real sob sister
an old-maid attitude
a member of the weaker sex
(2)
Avoid expressions that suggest that men are the only people
on earth:
AvoID
man's basic liberties
reasonable man
the wisdom of man
(3)
USE
basic human liberties

reasonable person
human wisdom
Avoid sex based descriptions and titles when there are reasonable substitutes:
AVOID
workman
congressmen
policeman
mayoress
authoress
foreman
newsman
USE
worker
members of Congress
police officer
mayor
author
supervisor
reporter, journalist
(4) When referring to both sexes, use parallel construction:

Avom
USE
men and their wives
husbands and wives
ladies and men
men and women, ladies and
gentlemen
President Washington and
President and Mrs. Washington
Martha
(5) Avoid using masculine singular pronouns when the referent

is not necessarily male. Phrases like he or she can be used
in moderation, but it is usually less clumsy to recast the sentence in one of these ways:
(a) Omit the pronoun:
The average citizen enjoys his
time on the jury.
(b) Use the second person
Each juror must think for himself.
The average citizen enjoys jury

duty.
in place of the third person:
As a juror, you must think for
yourself.
CALIFORNIA L4W REVIEW
[Vol. 66:727
(c) Use the plural in place of the singular:

Each juror believes that he has
All jurors believe that they
have done something worthdone something worthwhile.
while.
(6) If you are desperate, you can recast the sentence in the passive voice, but that has its own drawbacks.30
D. Adjective-Adverb Mania
Most legal writing is declaratory. Its simply states the facts, without comment and without trying to persuade anyone of anything.
Statutes, apartment leases, corporate bylaws, and bills of lading fall in
this category. But some legal writing does comment; through commentary, it seeks to persuade the reader to believe what the writer believes. Legal briefs and judicial opinions are obvious examples.
Where commentary is appropriate, it will be more potent if you use
strong nouns and verbs, not weak nouns and verbs held afloat by adjectives and adverbs:
ADECTIVES AND ADVERBS
The witness intentionally testified

untruthfully about the cargo.
Defendant's sales agents maliciously took advantage of people
with little money and limited
intelligence.
NOUNS AND VERBS
The witness lied about the

cargo.
Defendant's sales agents
preyed on the poor and ignorant.
When you need to use an adjective or adverb for commentary,

choose one that fits. Do not use a firey one and then douse it with
water.
rather catastrophic
somewhat terrified
a bit malevolently
slightly hysterical
Likewise, do not choose a flaccid one and then try to prop it up with
words like very, much, and quite:
WEAK
she was very, very angry

this is quite puzzling
there was much confusion in the
courtroom
STRONG
she was enraged

this is baffling
the courtroom was chaotic
Adjective-adverb mania sometimes produces terms like "real

facts." Are there any "unreal facts"? If a witness is described as telling the "honest truth," what are we to say of those who tell only the
"truth"? Is a "dead murder victim" any colder than a "murder vic30.
See Part IVB supra.
1978]
PLAIN ENGLISH FOR LAWERS
tim"? Is a "completely revoked" contract offer any more lifeless than

one that has only been "revoked"? What are we to say when asked our
"actual age"? To avoid all this, forget the adjectives and adverbs and
*let the nouns and verbs do their work.
E.
Throat Clearing
Just as some public speakers clear their throats at every pause,

some legal writers feel the need to clear the clogs from their pens every
fifty words or so. The result is a collection of phrases like this:
It is important to add that ....
Clear beyond dispute is the fact that ....
It may be recalled that ....
In this regard it is of significance that ....
It is interesting to point out that ....
William Zinsser writes:
If you might add, add it. If it should be pointed out, point it out. If it
is interesting to note, make it interesting. Being told that something is
interesting is the surest way of tempting the reader to find it dull
31
Words like clearly are favorite throat clearers. California's former

Chief Justice Roger Traynor used to tell his law clerks to strike clearly
whenever they used it: if what is said is clear, then clearly is not
needed, and if it is not clear, then clearly will not make it so. (See
Exercise 15, Appendix A.)
CONCLUSION
Writing plain legal English is not easy. You can learn only by
putting your own pencil to paper. That is why the practice exercises
are included in Appendix A; if you have ignored them up to now, go
back and work them. Remember, too, that a lawyer who writes plain
English may not be loved by other lawyers. Economist John Kenneth
Galbraith addressed this point when speaking of the need for plain English in his field. What he says applies equally to the law:
[Tihere are no important propositions that cannot be stated in plain
language .... The writer who seeks to be intelligible needs to be
right; he must be challenged if his argument leads to an erroneous conclusion and especially if it leads to the wrong action. But he can safely
dismiss the charge that he has made the subject too easy. The truth is
not difficult. Complexity and obscurity have professional value-they
are the academic equivalents of apprenticeship rules in the building
31.
W. ZINSSER, ON WRITING WELL 16 (1976).
CALIFORiIA_ L4W REVIEW
[
[Vol.
66:727
trades. They exclude the outsiders, keep down the competition, preserve the image of a privileged or priestly class. The man who makes
things clear
is a scab. He is criticized less for his clarity than for his
32
treachery.
32.
Galbraith, Writing Typing & Economics, ATLANTIc, March 1978, at 105.
1978]
APPENDIX A-EXERCISES
After you work these exercises, compare your results with the suggestions found in Appendix B.
1. Circle the working words in the sentence below. Compare
their number with the number of glue words. Then rewrite the sentence, circle the working words, and compare the result with the original.
In the event that there is a waiver of the attorney-client privilege
by the client, the letters must be produced by the attorney for the
purpose of inspection by the adversary party.
2. Use one or two words to replace the compound constructions
in these sentences.
a. In the event of the tenant's default, the lease will terminate.
b. From the point of view of simplicity, an ordinary deed of
trust would be the best.
c. Prior to the enactment of the statute, the clause was added
for the reason that the Burke decision seemed to require it.
d. Plaintiffs brief contains several misstatements with respect
to the disputed time sequence.
e. When the funds are received, we will transfer title with a
view to clearing up all questions in reference to this matter.
f. At this point in time, the witness cannot recall what the letter was with reference to.
3. Trim out the verbose word clusters in these examples.
a.
b.
c.
d.
e.
At such time as the judgment is entered. ...

This is an instance in which estoppel can be invoked ....
He was sentenced for a period of five months ....
Pursuant to the terms of our contract. ...
There can be no doubt but that the statute applies where
f. The claim was clarified by means of a bill of particulars

g.
The trial judge must consider the questiGn as to whether
h. This offer will stand until such time as you ....

i. In accordance with 103(b), you are entitled ....
j.
In most instances good faith is not disputed. .
..
k. The plaintiff filed suit despite the fact that she knew that
[Vol. 66:727
1. Arbitration is useful in some instances where the parties

m. This is a point that has troubled many courts ....
n. Because of the fact that he was injured ....
o. The question as to whether there was negligence ....
4. Cut the surplus words from these sentences by shortening
clauses and phrases.
a.
b.
c.
d.
e.
f.
There are three misstatements of fact in appellant's opening

brief.
The decree which was entered by the lower court does not
affect the claim that has been made by the stockholders.
It is not necessary for the witness to sign the deposition transcript until the errors that were made by the reporter are
corrected.
In approving a class action settlement, it is imperative for
the court to guard the interests of class members who are
not present.
There is nothing to tell us whether this misconduct on the
part of counsel influenced the verdict rendered by the jury.
The agreement with respect to partition that was reached
between Smith and Hagen was superceded by the decree
that was entered by the court at a later time.
5. In the following passage you will find all the kinds of surplus
words described in Part I. Rewrite the passage, omitting as many surplus words as you can.
We turn now to the request which has been made by the plaintiff
for the issuance of injunctive relief. With respect to this request,
the argument has been made by the defendant that injunctive
relief is not necessary because of the fact that the exclusionary
clause is already null and void by reason of the prior order and
direction of this court. This being the case, the exclusionary
clause can have no further force or effect, and the defendant argues that in such an instance full and complete relief can be
given without the issuance of an injunction. We fred ourselves
in agreement with this argument.
6. Rewrite these sentences using familiar, concrete words.
a.
b.
The firmamental hemisphere is undergoing precipitant altitudinal decline.

The prisoner's aptitude for acclimatization to lack of confinement is one factor which must be taken into account in
the deliberations of the Parole Board.
PLA4IN ENGLISH FOR LAWYERS
1978]
c. The effectuation of reformation of penal institutions is

dependent to some degree upon the extent of awareness of
current events in that sector among members of the general
populace.
7. Rewrite these sentences without the lawyerisms.
a.
Said defendant International Business Machines is hereinafter referred to as "IBM."

b. The purpose of paragraph 9(f) is in ambiguo, but it appears
to be merepro majori cautela.
c. The patent laws which give a seventeen-year monopoly on
"making, using, or selling the invention" are inparimateria
with the antitrust laws and modify them pro tanto. That
was the ratio decidendi of the GeneralElectric case.
8. Rewrite these passages, using short sentences and omitting as
many surplus words as you can.
a.
b.
By establishing a technique whereby the claims of many

individuals can be resolved at the same time, class actions
serve an important function in our judicial system in eliminating the possibility of repetitious litigation and providing
claimants with a method of obtaining enforcement of claims
which would otherwise be too small to warrant individual
litigation.
While there are instances in which consumer abuse and
exploitation result from advertising which is false, misleading, or irrelevant, it does not necessarily follow that these
cases need to be remedied by governmental intervention
into the marketplace because it is possible for consumers'
interests to be protected through resort to the courts, either
by consumers themselves or by those competing sellers who
see their market shares decline in the face of inroads based
on such advertising.
9. Rewrite this sentence in tabulated form.

You can qualify for benefits under section 43 if you are sixtyfour or older and unable to work, and that section also provides
benefits in the event that you are blind in one eye, or in both
eyes, or are injured in the course of your employment.
10. Rewrite these sentences, omitting surplus words and using
base verbs in place of derivative nouns and adjectives.
a.
Section 1038 has pertinence to any contract which makes

provision for attorney fees.
CAtLIFORNTIA LAWREVIEW
[Vol. 66:727
Commencement of discovery is not dependent on the

judge's consideration of the motion.
c. We are in agreement with your argument, but if it is your
intention to cause delay, we will stand in opposition to you.
d. The effectuation of improvement in downstream water
quality has as a requirement our termination of the pollution of the headwaters.
b.
11. Rewrite these sentences using the active voice and omitting
surplus words.
Clients' funds which have been received by an attorney
must be put into the Client Trust Account.
b. This agreement may be terminated by either party by thirty
days' notice being given to the other.
c. Each month price lists were exchanged between the defendant manufacturers, and it was agreed by them that all sales
would be made at list price or above.
d. If I am not survived by my husband by thirty days, my children are to receive hereunder such of those items of my personal property as may be selected by my executor for them.
a.
12. Rewrite these sentences to emphasize the words right to

counsel.
a.
b.
The defendant's right to counsel is guaranteed by the sixth

amendment.
The defendant is denied the right to counsel if the defendant's lawyer is barred from speaking.
Rewrite this sentence, inverting the normal word order to emphasize the words the stench o/perjury.
c.
The stench of perjury lingers in every word the witness

spoke.
13. Close the gaps in these sentences by moving the intervening

words or by splitting one sentence into two. When you rewrite, omit
surplus words.
A response must, within twenty days after service of the
petition has been made, be filed with the hearing officer.
b. The attorney-client privilege, while applying to the client's
revelation of a past crime, has no application when the client seeks the aid of the attorney to make plans for the commission of a future crime.
c. The sole eyewitness, having seen the accident from the window of an apartment which was on the seventh floor of a
a.
19781
PLA4IN ENGLISH FOR LAWYERS
building located one-half block in a northerly direction

from the intersection, testified that she did not see which car
made the first entry into the intersection.
d. Jose Cruz, who was the plaintiff's grandfather, later transferred, by a deed of gift which was bitterly contested by the
heirs but which was ultimately upheld by the probate court,
the 200 acres which are in dispute.
14. Rewrite these sentences to solve the modifier problems. If a
sentence has more than one possible meaning, select whichever one you
wish and rewrite the sentence to express that meaning without ambiguity.
a.
b.
c.
d.
e.
f.
When a worker is injured often no compensation is paid.

The plaintiff's pain can be alleviated only by expensive therapy.
Being ignorant of the law, the attorney argued that his client
should receive a light sentence.
Defendant's argument overlooks an amendment to the statute which was enacted in 1971.
Under section 309, attorney fees only can be awarded when
the claim is brought without good faith.
Apparently the capital gains provision was intended to
encourage the production of cotton in the eyes of Congress.
15. Rewrite this paragraph to rid it of language quirks.

It goes without saying that every attorney has a mandatory ethical duty to protect what he learns in confidence about his clients.
Clearly, this ethical requirement covers what the client tells his
lawyer in confidence. But of equal importance, this duty imposed by the rules of ethics covers what third parties relate to the
practitioner of law about his client, if the client has asked that
such material be kept secret, or if revealing the third-party-derived, client-related information would harm or embarrass the
client.
CALIFORNIA LAWREVIEW[
APPENDIX
[Vol. 66:727
B-ExERCISE KEY
These are not "the answers" to the exercises. They are some of
the many possible answers. You may often find that your answer is
better than the one given here. That should be cause for cheer, not
ppzzlement.
1. With the working words circled, the original sentence looks
like this:
In the (
that there is a
of the (
-client
~by the l
tthe ci
be (p
u
by the
tn
for the (p
of
by the d
a
The original could be revised to read:
If the client waives the attorney-client privilege, the attorney
must produce the letters for inspection by the adversary party.
With the working words circled, the revision looks like this:
(
2.
the
a.
b.
c.
pvilege the
by the
f.
If the tenant defaults, the lease will terminate.

For simplicity, an ordinary deed of trust would be the best.
Before the enactment of the statute, the clause was added
because the Burke decision seemed to require it.
Plaintiffs brief contains several misstatements about the disputed time sequence.
When the funds are received, we will transfer title to clear up
all questions about this matter.
Now the witness cannot recall what the letter was about.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
1.
When the judgment is entered ....

Here estoppel can be invoked ....
He was sentenced for five months ....
By the terms of our contract ....
No doubt the statute applies where ....
The claim was clarified by a bill of particulars ....
The trial judge must consider whether ....
This offer will stand until you ....
Under section 103(b), you are entitled. ...
Usually good faith is not disputed. ...
The plaintiff filed suit even though she knew that ....
Arbitration is sometimes useful where the parties. ...
d.
e.
3.
the (attorey-cient
the
for
19781
m. This point has troubled many courts ....

n. Because he was injured ....
o. Whether there was negligence ....
4.
a. Appellant's opening brief contains three misstatements of

fact.
b. The lower court decree does not affect the stockholders'
claim.
c. The witness need not sign the deposition transcript until the
reporter's errors are corrected.
d. In approving a class action settlement, the court must guard
the interests of absent class members.
e. We cannot tell whether counsel's misconduct influenced the
jury's verdict.
f. The partition agreement between Smith and Hagen was
superceded by the later court decree.
5. We turn now to plaintiffs request for an injunction. The defendant argues that an injunction is unnecessary, because the exclusionary clause is already void under this court's prior order. Since the
exclusionary clause can have no further effect, the defendant argues that we can give the plaintiff complete relief without issuing
an injunction. We agree.
6.
a.
b.
c.
7.
The sky is falling.

One thing the Parole Board must consider is the prisoner's
ability to get used to freedom.
Prison reform depends partly on how much the public knows
about what is happening in prisons.
a. The defendant International Business Machines Corp. is

here called "IBM."
or simpler
Defendant International Business Machines Corp. (IBM)
b. The purpose of paragraph 9(f) is unclear, but it seems to have
been included only as an extra precaution.
c. The patent laws, which give a seventeen-year monopoly on
"making, using, or selling the invention," concern the same
general subject as the antitrust laws, and the two should be
construed together. The patent laws modify the antitrust
laws to some extent. That is why General Electric was
decided as it was.
8.
a.
Class actions serve an important function in our judicial system. They permit claims of many individuals to be resolved
at the same time. This avoids repetitious litigation and gives
CALIFORNIA LAW REVIEW6
[Vol. 66:727
claimants a way to enforce claims that are too small for individual litigation.
b. Consumers are sometimes abused and exploited by false,
misleading, or irrelevant advertising. But that does not necessarily require the government to intrude into the marketplace. Consumers themselves can go to court, as can
competing sellers who lose business because of such advertising.
9. You can qualify for benefits under section 43 if you are:
(a) sixty-four or older and unable to work;
(b) blind in one or both eyes; or
(c) injured in the course of your employment.
10.
Section 1038 pertains to any contract which provides for

attorney fees.
b. Discovery can commence before the judge considers the
motion.
c. We agree with your argument, but if you intend to cause
delay, we will oppose you.
d. To improve downstream water quality, we must stop polluting the headwaters.
11.
An attorney who receives clients' funds must put them in the

Client Trust Account.
b. Either party may terminate this agreement by giving thirty
day's notice to the other.
c. Each month the defendant manufacturers exchanged price
lists, and they agreed to make all sales at list price or above.
d. If my husband does not survive me by thirty days, I give my
children such items of my personal property as my executor
may select for them.
12.
a.
a.
a.
b.
c.
13.
The sixth amendment guarantees the defendant's right to

counsel.
If the defendant's lawyer is barred from speaking, the
defendant is denied the right to counsel.
In every word the witness spoke lingers the stench of perjury.
A response must be filed with the hearing officer within

twenty days after the petition is served.
b. The attorney-client privilege applies to the client's revelation
of a past crime. But it does not apply where the client seeks
the attorney's aid to plan a future crime.
c. The sole eyewitness saw the accident from a seventh floor
apartment window, half a block north of the intersection.
a.
1978]
PLIN ENGLISH FOR L.fWYERS
She testified that she did not see which car entered the intersection first.
d. Plaintiffs grandfather, Jose Cruz, later transferred the disputed 200 acres by a deed of gift which was bitterly contested
by the heirs but which was ultimately upheld by the probate
court.
14.
a.
b.
c.
Often when a worker is injured, no compensation is paid.

Only expensive therapy can alleviate plaintiffs pain.
The attorney argued that his client, being ignorant of the law,
should receive a light sentence.
d. Defendant's argument overlooks a 1971 amendment to the
statute.
e. Only when the claim is brought without good faith can attorney fees be awarded under section 309.
f. The capital gains provision was apparently intended, in the
eyes of Congress, to encourage the production of cotton.
15. Attorneys have an ethical duty to protect what they learn in confidence from their clients. This ethical duty covers what the client
tells the attorney in confidence. It also covers what third parties
tell the attorney about the client if the client has asked that the
information be kept secret, or if its disclosure would harm or embarrass the client.

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What are some criticisms of lawyers' writing styles?

What are some criticisms of lawyers' writing styles?

What steps have been taken to improve legal writing?

What steps have been taken to improve legal writing?

California Law Review

Plain English for Lawyers

Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview

Link to publisher version (DOI)

Plain English for Lawyers

CALIFORNIA LAW REVIEW

ordered that new regulations of the federal executive agencies must be

Exec. Order No. 12044, 43 Fed. Reg. 12,661 (1978).

PLAIN ENGLISH FOR LAWYERS

As a beginning lawyer, I was assigned to assist an older man, a

How to Spot Bad Construction

In every English sentence are two kinds of words: working words

PLAIN ENGLISH FOR LAWYERS

In many instances, insofar as the jurors are concerned, the jury

at that point in time

CALIFORNIA LAW REVIEW

(See Exercise 2, Appendix A.)

Trim Out Verbose Word Clusters

the fact that she had died

See how it can be trimmed

Likewise, the words case and instance spawn verbosity:

in some instances the parties can

sometimes the parties can

PLAIN ENGLISH FOR LAWYERS

in the majority of instances the

usually the landowner has

during the time that

there is no doubt but that

(See Exercise 3, Appendix A.)

The question was designed to

The question was designed to

The statute, which had been

The statute, enacted after the

The title search did not disclose

CALIFORNIA LAW REVIEW

There are three key paragraphs in

The pretrial order has three

It is possible for the court to take

The court can take judicial

Despite the legislative history,

Despite the legislative history,

The trial judge denied the

The trial judge denied the

The plaintiff rejected the offer

The plaintiff rejected the

(See Exercise 4, Appendix A.)

PLAIN ENGLISH FOR LA1YERS

avail myself of this opportunity to provide you with an explanation of

Example Two is better, is it not? Look at the choice of words in

Why does its author say statement for professional

PLAIN ENGLISH FOR LAWYERS

fessionalservices. But this is supposed to be a friendly, candid letter to

Use Concrete Words

[A]s the Lord commanded...

In accordance with the directive theretofore received from