WRITING TIPS ...

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PERSPECTIVES

SOUNDING LIKE A LAWYER parodists choose to amuse us, they use language
that taints the character or the passage with words
that only lawyers use. Consider this example:
BY MARTHA FAULK
Martha Faulk is a former practicing lawyer and English
instructor who teaches legal writing seminars through
The party of the first part hereinafter
known as Jack, and the party of the second “Students of
The Professional Education Group, Inc. She is co-author
part hereinafter known as Jill, ascended the law come
or caused to be ascended an elevation of
with Irving Mehler of The Elements of Legal Writing
(Macmillan Publishing Co., 1994). She is a regular
undetermined height and degree of slope, to respect
contributor to the Writing Tips column in Perspectives. hereinafter referred to as “hill.”2
It’s the silly, overstuffed sound of the archaic the power of
“But Martha, if I use these words you suggest,
and repetitious “hereinafter” that makes us smile.
will I sound like a lawyer?” This question, asked legal language
The cautiously defined “hill” is also recognizable
recently by a first-year student attending one of
as a typical (and sometimes essential) lawyerly
my Legal Writing seminars for practitioners, is and their
technique for specificity.
not as naïve as it may appear. Every law school
graduate takes pride in acquiring skill in legal Jefferson’s Lament obligation
analysis—thinking like a lawyer—as well as skill
Thomas Jefferson, considered to be one of
in legal writing—sounding like a lawyer. Lawyers to write
our best writers, recognized the problems of legal
themselves, wary of abandoning entrenched
language early in our history. When English
writing habits, sometimes question the advice to
avoid legal jargon, and to use short words, plain
English, and common terminology.
common law came to this country with the
English colonists, the ponderous writing style of
coherently.
”
English lawyers came with it. In 1817, Jefferson
A Profession of Words complained about the “taste of my brother
lawyers,” who, he said, had an affinity for “making
Students of the law come to respect the power
every other word a ‘said’ or ‘aforesaid’ and saying
of legal language and their obligation to write
everything over two or three times so as that
coherently. As David Mellinkoff, an astute
nobody but we of the craft can untwist the
observer of legal language, notes, “The law is truly
diction.”3
a profession of words.” 1 In addition to acquiring
legal concepts, every student of the law also Modern Complaints
acquires a legal vocabulary. Much of this
Recognizing that problems with legal language
vocabulary has functional justification. Terms of
persist, modern commentators, including law
art, for example, identify in a shorthand way a
professors, judges, and English teachers, have
more complex idea (proximate cause, hearsay, res
condemned the way contemporary lawyers write
ipsa loquitur). Words of identification (plaintiff,
and offered ways to correct bad writing. Richard
conformed copy, appellee) also have conventional
Wydick, a professor of law, says
meaning within the profession. Indeed, all lawyers
must have at their disposal a comprehensive We lawyers cannot write plain English. We
lexicon of functional and descriptive words such use eight words to say what could be said
as these examples. Why, then, is this legal lexicon in two. We use arcane phrases to express
often the subject of criticism and even derision? commonplace ideas. Seeking to be precise,
we become redundant. Seeking to be
Legal Jargon cautious, we become verbose. 4
One answer may be that legal language is
readily identifiable. Although terms of art may
not be accessible to the lay person, legal jargon is
certainly recognizable. When playwrights and 2
From D. Sandburg’s The Legal Guide to Mother Goose
(1978), quoted in Crystal, supra at 375.
3
Quoted in Tom Goldstein and Jethro K. Lieberman, The
1
Quoted in David Crystal, The Cambridge Encyclopedia of Lawyer’s Guide to Writing Well 7 (1989).
the English Language 375 (1995). 4
Richard Wydick, Plain English for Lawyers 3 (1985).

Vol. 10 Perspectives: Teaching Legal Research and Writing Fall 2001

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PERSPECTIVES

Wydick’s Plain English for Lawyers contains Court Documents

excellent advice for overcoming arcane language, For those legal writers still not persuaded by the
redundancies, and verbosity. This book should be advice of law professors, judges, English teachers,
required reading for law students and a
“Because of the companion piece to any handbook for citation
form.
and journalists, a good source for professional
advice is Irwin Alterman’s Plain and Accurate
large volume Style in Court Papers. This American Law
Judges, those intended readers for much of Institute–American Bar Association publication
of legal our writing product, also plead for clear, concise, provides examples of language suitable for the
and appropriate diction. The American Bar most formal of legal writing situations:
documents Association’s excellent publication Judicial complaints, answers, motions, discovery matters,
Opinion Writing Manual offers this advice in and briefs. For example, Alterman suggests that
requiring its “Writing Style” section: “it is unnecessary to add the phrase ‘defendant
Use the simplest, shortest, most precise in the above entitled cause’ to any court paper.
scrutiny, words possible. … Unduly formal or Simply name the party or say ‘defendant(s)’ or
abstract words and expressions make your ‘defendants(s)________________________.’” 8
understanding, writing difficult to follow. Eschew words
Archaic Language
such as ‘eschew.’ Avoid Latinisms and other
and decision, foreign terms that are not necessary terms As an example of inappropriate legal language,
of art. 5 law students and even some practicing lawyers
judges desire may be surprised to find the following suggested
Because of the large volume of legal documents
list of “Words to Avoid” in Plain and Accurate
requiring scrutiny, understanding, and decision,
readability Style in Court Papers. The book lists several
judges desire readability most of all.
categories of unacceptable legalisms; the following
English teachers bring a unique approach to
most of all.
” their criticism of legal writing. Dr. Terri LeClercq,
who has taught writing skills at the University of
words are archaic forms of modern and shorter
prepositions. Many legal writers routinely use
these words and others like them without giving
Texas School of Law for many years, believes that
much thought to their usefulness: 9
“[i]t is a compliment to be told that you think like
a lawyer, but an insult to be told that you write
Hereafter
like one.” 6
Herein
Professional Language Hereinafter
Despite this good advice from many sources, Hereinbefore
law students and practicing lawyers alike are Hereby
concerned about using language that sounds Hereof
lawyer-like, or, from their perspective, professional. Heretofore
Two prominent journalists explain that being Hereunto
a professional requires effort and skill. Tom Herewith
Goldstein and Jethro Lieberman suggest that for
lawyers, “professionalism means writing the best This “here” list is merely representative. Most
possible document within the deadline, just legal writing books, including those cited here,
as it means doing sufficient research.” 7 contain copious lists of words to weed from legal
documents.

5
Judicial Opinion Writing Manual 39 (1991). 8
Irwin Alterman, Plain and Accurate Style in Court Papers
6
Terri LeClercq, Guide to Legal Writing Style xv (1995). 77 (1987).
7
The Lawyer’s Guide to Writing Well, 114.
9
Id. at 168.

Fall 2001 Perspectives: Teaching Legal Research and Writing Vol. 10

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PERSPECTIVES

Wydick and others, including Jefferson, have

selected words such as “aforesaid” and “said” as
examples of legal jargon, words that have no larger
frame of reference and serve merely to give a legal
aroma to lawyers’ writings. These words may
unduly influence law students into thinking their
“Sounding like
a lawyer
documents have a professional sound. But good
writing, legal or otherwise, will always deliver the means using
meaning to the reader in a clear and concise
manner. To do otherwise is to confirm the worst appropriate
suspicions about the profession and to further
burden the courts and shortchange our clients. and precise
Best Advice
The best advice I can give students who ask
“Will I sound like a lawyer?” is this: Sounding like
language.
”
a lawyer means using appropriate and precise
language. You will then feel confident about your
knowledge, and your readers will be appreciative.

© 2001 Martha Faulk

Vol. 10 Perspectives: Teaching Legal Research and Writing Fall 2001