Four Score and Seven Years of Legalese

Abraham_Lincoln-Memorial-300x200My second year of college, I took an Introduction to Rhetoric course.  The first day of class, the professor stood at the board and wrote, “270.” “What does that mean?” he asked us.  We all stared at him, clueless.  After a few moments of silence, he added, “WORDS.”  “Now,” he said. “What does THAT mean?”  Still silence.  Finally, one brave soul in the back raised his hand: “The Gettysburg Address, sir?”  “Correct!” the professor shouted.  “270 words is how long the Gettysburg Address is.  Nothing you write for this class should be longer than 270 words.  If it was good enough for Lincoln, it’s good enough for you.”

Today marks the 150th Anniversary of the Gettysburg Address.  Americans across the country are commemorating President Lincoln’s speech.  One of my favorites: Pennsylvania high school students were challenged to rewrite the Gettysburg Address, in contemporary language, but with one limitation – the speech must be 270 words.

Can you imagine if lawyers were given that challenge?  “Inasmuch as eighty-seven (87) years have passed since a group of certain male persons(hereinafter known as “Fathers”) drafted a binding set of principles (hereinafter known as “The Constitution”) allegedly formed on the Continent (limited to the aggregate of Earth between the Pacific Ocean and the Atlantic Ocean, including and excluding the contested territories and geographic areas as specified in Appendix A) a new (i.e. not in previous existence and without prior usage or ownership) nation.”  Eighty-nine (89) words right there.

Now Lincoln was speaking a dedication, not drafting a real estate deed, but the point remains.  Give lawyers one sentence, they’ll return ten.  As legal writing expert Richard Wydick writes, “We lawyers cannot write plain English.  We use eight words to say what could be said it two.  We use old arcane 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 eye and numbing the minds of our readers.”

Listen, I’m a lawyer.  I know why lawyers want to use complex and, often, excessive words.  Part of it is that we’re trying to show that we can use these words, whether our audience is our client, the court, or opposing counsel.  Also, we’re attorneys.  By nature, we’re cautious and risk-averse.  We want to cover every possible angle and frankly, if every lawyer before us has used the phrase, “Last Will and Testament,” why would we just say, “Will”?

Legalese is incomprehensible to many people, including clients.  “Despite the fact” and “Heretofore” and “Nevertheless” and “Insofar” and “With respect to” and “From the point of view of” are not only unnecessary, they’re confusing.  They’re confusing to individual clients who seek clarity and certainty in their legal problems.  They’re particularly confusing and supremely unnecessary to young Millennials.  As is well-known, we are a generation that firmly believes that one letter should always replace three.  (c u l8r).

And don’t just think it’s your individual clients.  Corporate clients who work in the rush and tumble of the business world would prefer not to have to read ten pages of dense legalese that can be condensed to five or six numbered statements.  According to eBay attorney Katrina Johnson, speaking in plain English “can help build an environment of trust and credibility and confidence amongst your internal clients … they know they can come to you for very practical and meaningful advice they can apply – rather than a bunch of legal gobbledygook that may make no sense to them.”

Well, you argue, what about the courts?  While I agree that there are some terms a court will require due to the law to be applied, many courts would prefer attorneys to simply cut it down.  As far back as 1596, an English chancellor forced a man who wrote a 120 page brief to walk around Westminster Hall with his head sticking through the newly holed-out brief.  On November 9, 1976, Chief Justice Burger admonished a North Carolina attorney, saying, “You filed a 216-page brief when 75 pages easily would have done it.”  And just last month, the U.S. Supreme Court informed the attorneys representing entities opposed to greenhouse gas regulations that their combined briefs could not exceed 45,000 words.   The attorneys wanted 75,000.

“Of the people, by the people, for the people”.  Lincoln knew what government was.  Lawyers should remember the same.  We serve clients, not posterity.  We serve justice, not verbosity.  We don’t write to see how many “Wheretofores” and “Inasmuches” we can fit into one sentence; we write to win.  So take a page out of the President’s book.  Keep it short.  Keep it simple.  Make it count.  270 words.  Who knows?  Maybe that’ll be all you need.

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