By: Atty. Loreto C. Ata1
One can be a good lawyer or judge and a bad writer,
but not a great one without being a good writer.
– Stuart Berg Flexner (lexicographer, editor, author)
Law is a profession of words.2 Words, oral and written, are the staple of our practice. A lawyer who does not write is no different from a doctor who does not use a stethoscope, or an architect who does not draft designs, or a vendor who sells no goods. That lawyer is one in name only. The lawyer who knows enough of law but has difficulty in writing, faces serious problems in practice.
Legal writing is the written output of lawyers. It covers a broad and varied range of papers: contracts, letters, pleadings, briefs, opinions, to name a few.
The foremost aim of legal writing is to communicate. Write in such a way that the reader understands what you want to say. There is here an obligation of courtesy—the writer must always consider the reader’s comfort and convenience in mind. Says Brian A. Garner, the American guru on legal writing: “Your readers are the ones, finally, who matter: You have invited them to attend your words, you seek their precious time, and you may even expect to be paid for your efforts. Courtesy requires that you show your readers some grace and consideration.”3 This is the golden rule of writing: write to others as you would want others to write to you.
A good piece of legal writing hews to the accepted standards of form, tone, and manner of writing.
Follow Standard English. Standard English, also known as Standard Written English or SWE, is the form of English most widely accepted as being clear and proper. It is a collection of guidelines for communicating effectively. So it is not conventional to write like, say, Jedi Warrior Yoda: “The rule of law follow the Court must,” instead of the conventional “The Court must follow the rule of law.”
Use plain language. "Plain" here does not mean drab or ugly. Plain language is the idiomatic and grammatical use of language that most effectively presents ideas to the reader."4 As the starting point and at every point, design and write the document in a way that best serves the reader. Your main goal is to convey your ideas with the greatest possible clarity.”5 Plain language is conversational language; the words used on paper are the same simple and familiar words spoken within the norms of respect and civility. The writer’s message is caught in one passing.
Obey the rules of grammar. Grammar is not a code of law but a set of conventions, a tool of communication to achieve the writer’s purpose. Some rules of grammar are strict. For one, often violated is the rule that the verb must agree in number with the subject. Plural subjects take plural verbs, singular subjects take singular verbs. It is therefore incorrect to say: “Each of the defendants were [was] required to post bail.” Or, this example found in SCRA: “Moreover, the Court notes that the registry receipts were not even marked as exhibits so that it [these] may be considered as part of the records of the case.” Another rule is to anchor modifiers to what they modify. Correct: “Sustaining a gunshot wound on his leg, the victim fell.” Incorrect: “Being a leader in construction arbitration, we will be honored by your presence [you will honor us by your presence].”
But some grammar rules are plain “superstitions,” the word used by Fowler to describe “unintelligent applications of unintelligent dogma.”6 Garner lists some of these superstitions:7 “(1) Never end a sentence with a preposition. The origin of this rule is in the very meaning of preposition: stand before. The preposition stands before the word. This is the rule in Latin. There is no reason to extend it to English. (2) Never split an infinitive. (3) Never split a verb phrase. This happens in a compound verb (ex: have/have been ___). ‘I greatly have been disappointed’ is less natural than ‘I have been greatly disappointed.’ (4) Never begin a sentence with And or But. (5) Never write a one-sentence paragraph. You can use a one-sentence paragraph when you wish to highlight a critical point, or to dramatize the transition from one stage of your argument to another, or to give the reader a rest if your instinct tells you that the reader might be tiring. (6) Never begin a sentence with Because.”
Apply the professional form and tone. Most legal writing is formal so the conventions of formal writing apply. Hence, avoid contractions (“Plaintiff hasn’t proved his case”). Avoid “street talk.” (“The robber was put in the slammer for ripping off a bank”). As one writer observes, the safe tone is one of “measured rationality,” which carries the invitation: let us reason together on the issue.8 “Target the paper as if the audience were a reasonably intelligent and diligent judge who until now has had little or no exposure to the issue on which you write but who is about to make an important decision on it. Assume this judge has some serious reservations about the position you take, but has not yet made up his or her mind on the subject. Your job is to anticipate and meet all of his or her objections and other concerns.”9
Use respectful language. Our writing must conform to the basic rules of good manners. Gutter language, sarcastic or insulting remarks have no place in court pleadings. Lawyers have been sanctioned for uncivil writing.
The wording must fit the thought as the glove fits the hand.10 Choose the right word, not its second cousin, someone suggests. Consult the dictionary or thesaurus when in doubt.
Yet we can never be too precise. In preparing contracts, lawyers fall into the habit of putting in so many qualifiers: Provided, that; Provided further, that; Provided finally, that; The foregoing notwithstanding; etc. Using more words increases the risks of ambiguity in the language.
Be consistent in the use of words. Elegant writing is shown by the good taste and consistency in the choice of words. Do not be afraid to repeat a word as often as possible to avoid vagueness or confusion. Some lawyers are guilty of inelegant variation, or using different words to convey the same idea. The statement, “One who writes a will must ensure that the testament covers all contingencies,” makes the ordinary reader think that a will and a testament are not the same. Fowler reminds that once you have selected a word to convey an idea, use the same word for the same idea. Do not change guards.
Clarity means easy understanding of the writer’s ideas. A word, phrase, sentence or paragraph is clear when nothing prevents the reader from capturing the thought conveyed by the writer.
Avoid ambiguous and vague language. A word, phrase, or sentence is ambiguous if it has more than one meaning, and the reader cannot determine which meaning is intended by the writer. Example: Common-law spouses Ramon and Flora opened an appliance store business but because of serious disagreements, they terminated their relationship. Which relationship was terminated, the common-law or the business?
A word or phrase is vague if its meaning is not clear in the context. Example: The complainant’s condition was serious when he went to the prosecutor’s office and met the respondent. “Condition” is vague because we do not know what it referred to, whether it is about the complainant’s health, or his behavior, or his problems, or whatever.
Prefer concrete words to the abstract. A concrete word appeals to any of our senses, in contrast to an abstract word which is one you “can't eat or smell or measure” and which cries out for exemplification.”11 Abstract: “At the police station, the victim indicated to the policeman that he was robbed.” Concrete: “At the police station, the victim told the policeman that he was robbed.”
Use specific instead of general words.
General: “The victim was hit in the head with a blunt instrument.” Specific: The victim was hit in the head with a wooden baseball bat.
Use the names of parties. “Don’t go through your whole brief calling parties plaintiff-appellant and defendant-appellee, or the like. Appellant would be enough, but it is better to call parties by name. When you use procedural titles, the reader must translate to understand what we mean. The procedural titles change throughout the case, but the names remain the same.”12 Also, avoid legalese in party designations. A common sight in pleadings: “Plaintiff Sto. Santito Memorial Gardens, Inc. (hereinafter referred to, for brevity, as Corporation).” “Plaintiff Sto. Santito Memorial Gardens, Inc. (Corporation)” performs the same function.
Be concise. Be brief. To communicate, do it with dispatch. If the judge can be convinced by 10 pages of argument, there is no need to write a pleading of 60 pages. Remember that it is the arguments that are weighed, not the paper on which they are printed. Cut, cut, cut.
Go direct to the point. The key words are short, fast, and direct. As Thomas Jefferson said, “the most valuable of all talents is that of never using two words when one will do.” Instead of “submit an application,” use “apply”; “make an appointment,” “appoint”; “is applicable,” “applies”; “have knowledge of,” “know.”
Omit needless words. Let us heed this classic advice from Strunk and White:13 “Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all details and treat his subject only in outline, but that every word tell.” Original: “The question as to whether or not.” Improved: “The question whether” or “Whether.” Original: “The main thrust of the appeal is that the credibility of the witnesses for the prosecution is assailed” (18 words). Improved: “The appeal assails mainly the credibility of the prosecution witnesses” (10).
Avoid weasel words, a term coined by U.S. Pres. Theodore Roosevelt. “When a weasel sucks eggs it sucks the meat out of the egg and leave it an empty shell. If you use a weasel word after another there is nothing left of the other.”14 Some intensives have the effect of weakening a statement. Examples: significantly, substantially, reasonable, meaningful, compelling, undue, clearly, obviously, manifestly, quite, duly, virtually.15 Add to this list “irrefragably,” a favorite word in many recent court decisions.
Avoid “throat-clearing” words or needless preambles. Here is another suggestion from Judge Mark Painter: “Cut the useless preambles. Unnecessary preambles can weaken or hide the point they introduce. Some unnecessary preambles: It is important to note that. . .; It may be recalled that . . .; In this regard it is of significance that. . .; It is interesting to note that. . .”16 They are called space-fillers or padding. They add bulk but not meaning to the sentence.
Prefer the short word to the long. Use “So” instead of “accordingly”; “also” instead of “likewise”; “so” instead of “consequently”; “use” instead of “employ.” Short words save space and are easier to read.
Avoid needless repetition. Repetition is one of the most useful tools available to writers. Repetition allows a writer or speaker to hammer home an idea, image, or relationship, to force the reader to pay attention. Sir Winston Churchill said: “If you have an important point to make, don’t try to be subtle or clever. Use a pile driver. Hit the point once. Then come back and hit it again. Then hit it a third time – a tremendous whack.” What is to be avoided is needless repetition. Use “consensus” instead of “consensus of opinion”; “panacea” instead of “panacea for all ills”; “cancel” instead of “cancel, annul, and set aside.”
Shorten sentences. There are only two cures to a long sentence: say less and put a period in the middle.17 Short sentences make for easier reading. The mind easily digests sentences offered in small bites. Here is a caution, though. Do not bore the reader by a train of short sentences. Vary the length of the sentences to make them interesting. Sentence variety is the spice of good legal writing.
As much as possible, avoid compound sentences, which are separate sentences joined into one sentence by connectives like and, or, but, while, and similar ones. The aim is to make the points you are bringing up in a sentence easily readable and understandable. A rule of thumb is to keep the number of words for each sentence to not more than twenty.
Keep paragraphs generally short. Follow the same rule in writing paragraphs. A sentence contains one unit of information. A paragraph contains one set of connected pieces of information. String related pieces of information in one paragraph. If you have a new set of information, put it in a new paragraph. Vary the sentence patterns in paragraphs. A reminder: Do not always start a sentence or the opening sentence of the paragraph with “The.” Five out of nine successive paragraphs in one short decision in SCRA started with “The.” (1) The accused-appellant …; (2) The Information …; (3) The lower court’s finding …; (4) The inconsistencies…; and (5) The accused is entitled to….
Put related information in a sequence or list style. If you have a list of arguments, reasons or information to present, a good suggestion to assist the reader to follow and understand you is to put them in a sequence. Examples: (1) The Court’s action violates petitioner’s right to due process, for the following reasons: First,____. Second,_____.Third,____. (2), First of all, ____. Additionally,_____. Moreover, ____.Finally,____.
This sequencing style signals to the reader that the sentences or paragraphs that follow are related and should be considered together.
Simplify, simplify. 18Embrace simplicity.19 Knowledge is a process of piling up facts; wisdom lies in their simplification.20
Use simple words and phrases. Examples: Use “try” instead of “endeavor”; “help” instead of “facilitate”; “show” instead of “demonstrate”; “use” instead of “utilize”; “ “ask” instead of “inquire.”
Use familiar words. Avoid the use of fancy or high-flown language. Examples: “Altercation” for “fight”; “capacious” for “roomy”; “confabulate” for “chat”; “prognosticate” for “predict”; “vociferate” for “shout.”
Once in a while, a reader is jolted by an uncommon word that appears in a court decision, as in this one from the Supreme Court: “Contrary to the appellate court’s illation, respondents have not established possession of the subject properties.”
Prefer the active voice to the passive voice. Sentences with verbs in the passive voice have three characteristics: They require more words. They lack the vigor and directness of the active voice. They conceal the actor or doer of the action.
According to some writers, a good rule to follow is to use the active voice unless the passive voice is more proper for special reasons:
(a) To emphasize the action rather than the doer: Trespassers will be prosecuted.
(b) To draw attention away from the performer of the action: The contents of the file were inadvertently destroyed.
(c) To emphasize the facts: As a result of the accident, the windshield was smashed, the front passenger door pulled off its hinges, and the front wheels misaligned.
(d) The doer is not known: The warranty must be registered with the manufacturer before it becomes effective.
(e) To hide the identity of the actor: Mistakes were made.
(f) To vary the sentence structure: Santos pulled out his gun. As he was aiming to fire, Ramos ducked behind the wall. Santos approached carefully, but he was stopped by two successive gun shots. Santos instinctively clutched his chest where he was hit. His body lurched forward but he was dead before his head touched the ground.
Avoid legal jargon as much as possible. When communicating with non-lawyers like our clients, let us use plain English and strip our writing of legal jargon or legalese. The role of legal writing is to communicate not to obfuscate. So use only the language that the readers understand. But even when writing pleadings or legal documents such as contracts, remove legalese as much as possible.
Avoid the use of legal words and formalisms that give legal writing “a musty smell,”21 like herein, hereto, aforementioned, heretofore, therewith, heretofore, hereby, etc. What is the difference in meaning between “Judgment is hereby rendered” and “Judgment is rendered”?
Of course, some terms of art are unavoidable: lis pendens; per curiam; prima facie; reserva troncal; reclusion perpetua; res ipsa loquitur; respondeat superior. Resort to legal terms when there is a need for precision of language.
Avoid nominalization, or making the noun do the work of a verb, or turning a verb into a noun and adding helping verbs to get the same meaning across. Examples: (1) The wife made an application [applied] for the recovery of [for, or to recover] indemnity with the Employment Compensation Commission. (2) Reached an agreement [agreed]; made a statement [stated]; made an assumption [assumed].
Be selective in citing cases. Justice Jackson of the U.S. Supreme Court has this suggestion: “If the one or two best precedents will not convince, a score of weaker ones will only reveal the weakness of your argument.” Remove the clutter from the document by transferring the citations to footnotes.
Weave quotations within the text. Avoid lengthy quotations. Seldom do the judges and the opposing counsel read large blocks of quotations in full. Also, be selective in quoting. Quote only the portions that are directly material to the issues and persuasive to your side. If possible, weave the quoted material within the paragraphs or text of your pleading.
Guide the reader with headings. Break up long pleadings into parts. One way to do this is by using headings. Headings serve as guideposts that alert the reader on what is coming and what to expect. They are especially needed in the argument portion which may consist of several separate items. They signal the reader when to take a break and pause if the material is long or complex. They also help the writer organize the material.
Use transitions for coherence. You can have the right information in your paragraph and have it organized, but readers can still miss the "flow" of ideas. This happens when readers have difficulty in sensing how the information is related or connected to each other. The writer should move the reader from point to point, guiding him along the way. Transitions are devices that help readers in going through the paper.
Transitions may be additive (furthermore, moreover, additionally), chronological or narrative (next, after, before, eventually), contrastive (but, on the other hand, however, similarly), alternative (either, or, neither, otherwise), causal (because, therefore, thus, unless, that is why, due to because of), illustrative (for example, for instance, as an illustration), repetitive (in other words, simply put, that is), or physical (on top of, under, beneath, in the middle).
Use parallel phrasing for parallel ideas. Parallelism is the pairing of words or phrases similar in sound ("government of the people, by the people, and for the people"), or rhythmic stress ("ask not what your country can do for you, but ask what you can do for your country"). It is one of the most effective tools of writing.
Be persuasive. To persuade is to make the judge agree with you. The three modes of persuasion in oratory written about by Aristotle22 apply to writing: (1) Logic (logos) or appeal to reason; (2) Emotion (pathos) or appeal to emotions; and (3) Credibility (ethos) or appeal to the character of the writer, as reflected in the quality of his writing. Your pleading is an invitation to the reader to engage his mind (logic), heart (emotions), and attitude to your side (credibility).
The way you write your pleading affects your ability to persuade the court. If your pleading is poorly written, the court may find it hard to follow the flow of your reasoning. If the pleading is written well, the court will be pleased by the ease with which it is able to understand your side. Do not expect the court to be happy if you are forcing it to “struggle through” your pleading. If your arguments are well presented, the court forms the opinion that you are a “good man,” a step nearer to winning the court’s approval. How is credibility achieved? Write clearly, respectfully, honestly, and professionally. Clearly: be organized. Respectfully: no offensive or sarcastic language. Honestly: do not twist the facts. Professionally: stick to the issues.23
Avoid clichés as much as possible. Avoid words, phrases, or sentences that have been used so many times, and read so many times, that their power or impact has been lost or lessened. Examples: crystal clear; time is of the essence; well-settled.
Use figures of speech. The common figures of speech are: (1) Alliteration or use of similarly sounding words (“sweet smell of success”). (2) Similes or comparisons (“As a pianist practises the piano, so the lawyer should practise the use of words, both in writing and by word of mouth.”). (3) Metaphor or indirect comparisons (Justice Abraham Sarmiento: “At the risk of being irreverent, the reading of the constitutional rights to a poor, illiterate farmer is no different from reading the ten commandments to a deaf and dumb sinner”). (4) Personification or giving human traits to non-human objects (Justice Isagani Cruz: “[Decisions] are the voice of vanished judges talking to the future.”).
Be not afraid to break the rules to suit your purpose.
Do not be hamstrung by rules if you are aiming for a higher end or greater impact. As Henry David Thoreau said, “When I read some of the rules for speaking and writing the English language correctly, I think – Any fool can write a rule. And every fool will mind it.” Fear not to use sentence fragments. Or long sentences. Use a proposition to end a sentence with. After all, “writing is an act of faith, not a trick of grammar,” E.B. White wrote.24
Aspire for eloquence. “Wherever he starts, whatever trivial item of human experience he initially confronts, the legal writer can make a stab at eloquence. If Holmes was right, that ‘a man may live greatly in law as well as elsewhere’: then the consequence is that he must write greatly, for in law as well as in literature there is no other meaning of greatness.”25
* Published in Far Eastern Law Review, Vol. XXXIX, 2008
1 Partner, Medialdea Ata Bello & Guevarra; President, FEU Law Alumni Association (2006-2008); Faculty Member, FEU Institute of Law
2 Kathleen E. Vinson, Improving Legal Writing: A Life-Long Learning Process and Continuing Professional Challenge (2005), 11
3 Brian A. Garner, The Elements of Legal Style
4 Bryan A. Gardner, A Dictionary of Modern English Usage, 662
5 Prof. Joe Kimble, The Elements of Plain Language, Michigan Law Journal
6 Bryan A. Garner A Dictionary of Modern English Usage, 586
7 Ibid., 631-632
8 Pamela Samuelson, Good Legal Writing: of Orwell and Window Panes, 46 University of Pittsburgh Law Review 149 (Fall 1984)
10 Peter Landry, On Writing (www.blupete.com), quoting Gustave Flaubert
11 Attributed to Roy Peter Clark, author of Writing Tools, 50 Essential Strategies for Every Writer
12 Judge Mark Painter, Legal Writing 201, 30 Suggestions to Improve Readability or How to Write for Judges not Like Judges
13 The Elements of Style, 4th Edition
14 Bryan A. Gardner, A Dictionary of Modern American Usage, 926
16 Judge Mark Painter, op cit.
17 David Mellinkoff, The Language of the Law
18 Henry David Thoreau
19 Lao Tzu
20 Martin Fischer
21 Prof. Joseph Kimble, Lifting the Fog of Legalese
22 Rhetoric (W. Rhys Roberts translation). “Of the modes of persuasion furnished by the spoken word there are three kinds. The first kind depends on the personal character of the speaker; the second on putting the audience into a certain frame of mind; the third on the proof, or apparent proof, provided by the words of the speech itself.” ( Book I, Part 2)
23 Troy Simpson, Persuading Judges in Writing: Tips for Lawyers
24 Roy Peter Clark, Writing Tools, 50 Essential Strategies for Every Writer, 39
25 Walker Gibson, Literary Minds and Judicial Style; Quoted in Bryan A. Gardner, A Dictionary of Modern Legal Usage, 518-9; italics added