Recently, I read an article in The Scribes Journal of Legal Writing by Jill Barton entitled So Ordered: the Techniques of Great Judicial Stylists. You may wonder why I’m writing about the article here, in a newsletter for lawyers, not judges. The answer is that good legal writing is good legal writing—whether the writer is a lawyer or a judge. In this issue, we’ll discuss the first three techniques Barton identifies; in next month’s issue, we’ll discuss the remaining three techniques she identifies.
Tell a Story
Longtime readers of The Source will recognize this technique. As Barton says: “Behind every court case is a story, with real people and real emotion and real conflict. The more the story shines through the legal complexities, the better the writing and the more convincing the point.” Here is the first example she offers, from the dissent in a Pennsylvania Supreme Court case. Barton explains that the scene helps justify why the woman should win her negligence case, even though the bull did not physically touch her, as the law requires:
Like those human beings who believe that fame and fortune always lie in some land distant from their own, the cows of the Dale Andrews Farm in West Salem, Mercer County, were not satisfied to browse and chew their cuds in their own pasture. They were certain that in the fields across the highways which bordered their owners’s domain the grass was greener, the earth fresher, the trees shadier, and the skies above bluer. Thus from time to time they would leave their own preserves and invade the Bosley farm on the other side of the road where, with the spirit of bovine buccaneers, they devoured their neighbor’s corn and wheat, destroyed his vegetable gardens, knocked over young peach trees, damaged the apple orchard, mangled berry bushes, and eventually departed, leaving behind them a wide swath of ruin and destruction. They sometimes went away of their own accord, but frequently they had to be driven back to their home territory by the Bosleys.
On the morning of April 10, 1950, … they came, eight of them, with reinforcements. They brought along their boy friend, a 1500-pound white-faced bull….
Mr. Hereford and Mrs. Bosley saw each other at the same time. Mrs. Bosley screamed, and the truculent Hereford lowered his head to charge. Terror-stricken, Mrs. Bosley tried to run, but, as in a bad dream on cannot flee although disaster is at one’s heels, she froze to the spot….
Although the bull was about 25 feet away from Mrs. Bosley when she first beheld him charging toward her, she ran some “five steps” before she collapsed. Allowing for at least two feet for each step, it becomes evident that the bull was within 10 to 15 feet of Mrs. Bosley before his course was diverted. It is enough merely to visualize a snorting, charging bull with impaling horns only a dozen feet away, to grasp at once the magnitude of Mrs. Bosley’s fright and the extent of the terror to which she was subjected.
Keep it short
Barton opines that legal writers too often take 20 words to say something when 10 words will do. “Writing about complicated legal issues in plain language might require twice the editing as writing about it in a convoluted way. But the payoff for concise, plain writing is that the reader will figure out what you’re saying in half the time—and probably understand it better too.”
Barton uses as an example part of Chief Justice Roberts’ dissent in Obergefell:
If you are among the many Americans—of whatever sexual orientation —who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Barton observes that “Chief Justice Roberts’s first line sets up a powerful sequence. The repetition in each line creates a rhythm. And the staccato length of each sentence propels the reader forward.”
Says Barton: “too often legal writers use Latin and jargon to prop up poor writing, and they use (or copy) convoluted explanations to skirt the need to translate their words into plain language.” Of course, Barton recognizes the need to use terms of art such as res ipsa loquitur and de novo. But she offers a list of words to avoid:
- Outdated formalities—now comes, further affiant sayeth naught
- Redundancies—null and void, each and every
- Uncommon titles—lessor, lessee, testatrix
- Most Latin terms—translate a phrase like inter alia to among other things
- Overly long words and phrases—firstly, pursuant to, in order to, in the event of
As noted above, we’ll have three more techniques from great judicial stylists next month.