Thoughts on Legal Writing from the Greatest of Them All: David Mellinkoff

Thoughts on Legal Writing from the Greatest of Them All: David Mellinkoff

6.18.2020

By Gerald Lebovits

“After six hundred years of lawsuits caused by language atrocities, a terrible suspicion is born. Maybe the lawyers don’t understand each other.”^[1]

David Mellinkoff, late Professor of Law at UCLA School of Law, is best known for authoring a series of books that decried the use of impenetrable language by lawyers and which contributed to a revolution in the use of language in teaching and practicing law.^[2] A graduate of Stanford and Harvard Law School, Mellinkoff began his career as a Beverly Hills attorney. After the publication and success of his monumental 1963 book The Language of the Law, UCLA invited Mellinkoff to teach, a position he kept for 20 years. He continued writing until his death at age 85 in December 1999.^[3]

Mellinkoff hated traditional legalese. He argued it fostered ambiguity and rendered legal documents, legislation, and scholarship inaccessible to lay people and attorneys. His disdain manifested in myriad ways, including a willingness to mock the sacred cows of legal scholarship. Legalese Cardozo declared “magisterial” Mellinkoff restyled as “pompous.”^[4] In his work, Mellinkoff wove a broad and extensive knowledge of linguistics, history, and Latin, French, and English into a sophisticated analysis of the origins of the American legal lexicon, and mapped out a future to give clarity to the writing that defines American law and legislation.

Although less recognized than Language of the Law, Mellinkoff’s 1982 book Legal Writing: Sense & Nonsense is perhaps his writing ethos fully realized — a shorter, more instructional version of Language of the Law. Legal Writing: Sense & Nonsense mostly forgoes the extensive research of Language of the Law for a set of seven relatively brief, easily understood rules, a section of stepwise exercises breaking down wordy and unclear legal language, as well as a set of appendices that provide Modern English translations for Latin, French, and English legal terms of art.^[5] This column explores the utility of Legal Writing: Sense & Nonsense.

STYLE

“lawsick n: a peculiar, English-like language commonly used in writing about law; peculiar in habitual indifference to ordinary usage of English words, grammar, and punctuation; and in preferring the archaic, wordy, pompous, and confusing over the clear, brief and simple; persists chiefly through a belief of its writers that these peculiarities lead to precision.”^[6]

1. Distinguish peculiar language from precise language. Many common legal words are imported directly from Latin, French, and Old or Middle English — words that are foreign and otherwise meaningless in Modern English, however. Merely because a word is ancient or borrowed from another language and is otherwise meaningless in common English doesn’t mean the word has any greater precision in expressing the writer’s intent. Common English is more effective than esoteric legal words.
2. Beware the consequences of imprecise writing. Precise writing isn’t an absolute. All legal writers must marshal their resources, including “a discriminating use of terms of art; spelling things out when explanation helps to remove uncertainty; correct use of English, punctuation, and typography; and a planned sequence of ideas,” to provide the best, most precise result possible.^[7] Conversely, interpreting poor writing occasions the use of the “clichés of construction.”^[8] These rules, including the plain-meaning rule, the intent rule, and contra profenterem construction (even Mellinkoff couldn’t fully escape Latin) guide judges and other readers to discern (and sometimes create) meaning from the ambiguous and sometimes meaningless words lawyers present.^[9]
3. Don’t abandon correct grammar for legalese. Mellinkoff is punchiest here. He rejected the traditional mixed-up Latin word order in legal documents that simultaneously gives legal writing an air of pomposity and unreadability. He admonished those lawyers and judges who delight in writing meaningless words to excess. Mellinkoff then broached the ever-prescient topic of pronouns in legal writing. He contended that modern legal writing is inherently sexist, and that substituting plural pronouns, gender-neutral pronouns, or doubled pronouns as a remedy often results in excessively long or ungrammatical writing; in other words, the bane of Mellinkoff’s mission. Mellinkoff failed to articulate a workable solution beyond being both grammatical and non-sexist, but he managed to end with a joke plucked right from 1982: “Neither male chauvinism nor anti-sexism ought to tolerate nonsense.”^[10]
4. Elect to use clear language. “Choose ordinary words over law words.”^[11] There’s no need to use ancient languages and foreign words to express simple ideas the average person must understand. Authority isn’t imparted by overly complicated terms of art; where possible, use ordinary English, Mellinkoff insisted.^[12] Additionally, consider formatting; to Mellinkoff, footnotes are the manifestation of laziness, the instrument of authors who want to avoid the heavy burden of weaving research and thoughts into their writing. He even claimed that footnotes are more “devious than lazy” — that the author’s intent is to conceal weaker material and arguments from the unsuspecting reader. Agree or not, footnotes distract the reader from the substance of the writing above the line. Use them sparingly, he intoned.^[13]
5. Write law clearly. This is perhaps the trickiest part of strong legal writing. Mellinkoff ceded, especially to non-lawyers, that changing the language of the law without the substance may be dangerous. Further, eliminating excess language without deleting key elements of a law, contract, or other legal document bears risks. Mellinkoff’s lawsick has so thoroughly infected legal writing and thought that it’s difficult to sound like a legitimate source of law unless one is speaking in that arcane and ambiguous language.^[14] Ultimately, omitting unnecessary law language and articulating the target audience strengthen legal writing. Tread carefully before trimming it away.^[15]
6. Begin with a plan. The greatest threat to good writing is haste. We should expect something fast but anticipate that it’ll be delivered in a poor state. Allot enough time to allow a thoughtful and considered piece, Mellinkoff opined. In the same vein, working from an outline allows the writer to lay out all ideas, tie down the strongest ones, and spot the bad ones before they develop into full arguments.^[16]
7. “Cut it in half!” Wordiness is the final enemy in preparing comprehensible legal writing. Extra words weaken precision and clarity and foster mistakes. Mellinkoff helpfully offers up a list of 15 categories of extraneous, confusing, or otherwise unnecessary words to cut. Finally, rewrite what’s been prepared; Mellinkoff advocated deleting and rewriting up to 50 percent of any legal writing. Regardless of the writer’s motivation to undertake drastic revision, a significant cut will allow a lawyer to view the core intent of the piece.^[17]

“Blunders and Cures”

“Whether it’s your legal writing or someone else’s, THE QUESTION is always in order: ‘Does it have to be like this?’”^[18]

The second section of Legal Writing: Sense & Nonsense contains a set of sample edits to legislation, contracts, and a specimen taken from a corporate law. Mellinkoff took each sample, in at least one instance just a single sentence, and applied his rules, dissecting, outlining, rewriting, and reformatting until he achieved the desired effect. Here, Mellinkoff’s approach receives the practical treatment it deserves. He wrung from his samples meaning out of every word, phrase, and punctuation mark, and discarded the rest.

The final appendices are less a reference than a curiosity. Mellinkoff takes Old and Middle English words, old formalisms, Law Latin and Law French, as well as various legal terms of art and translates the words and phrases into Modern English. Mellinkoff also provides an overview of Plain Language Laws, with references, and a bibliography for those who need a review of the rules of grammar.

Not truly a reference book, Sense & Nonsense conveys Mellinkoff’s humor and vast knowledge of history, language, and law through frequent anecdotes and examples. Mellinkoff’s antidote to lawsick may have been to sweep away the ancient and brainless language repeated by generations of lawyers, but his scholarly work retained its reverence for history and language.

The Legal Writer will continue its series on what we can learn from the great writing teachers — lawyers and non-lawyers.

[1] David Mellinkoff, Legal Writing: Sense & Nonsense xi (West Publishing Co. 1982) (Sense and Nonsense).

[2] Douglas E. Abrams, Legal Writing: Sense and Nonsense, 74 J. Missouri Bar 94 (2018).

[3] Myrna Oliver, David Mellinkoff; Attorney Advocated Plain English, Los Angeles Times (Jan. 4, 2000),

https://www.latimes.com/archives/la-xpm-2000-jan-04-mn-50558-story.html.

[4] David Mellinkoff, The Language of the Law 27 (Little, Brown and Co. 1963).

[5] Sense and Nonsense, supra note 1.

[6] Id. at xii.

[7] Id. at 15.

[8] Id. at 17.

[9] Id. at 15–19.

[10] Id. at 51.

[11] Id. at 62.

[12] Id. at 63.

[13] Id. at 94.

[14] Id. at 105.

[15] Id. at 101.

[16] Id. at 123.

[17] Id. at 130–32.

[18] Id. at xiii.