Skip the Latin and Big Words, and Focus on Simple Prose: The Power of Clear and Persuasive Legal Writing
Using big words might signal intelligence to the writer, but it usually has the opposite effect on readers.
Legalese, Latin and big words simply impede the reader’s ability to process what we are reading now.
As such, readers tend to give higher ratings of intelligence to writers of simpler proses.
Hon. Robert Bacharach (10th Circuit Court of Appeals) said that if you have the choice between writing “well not” or “inter alia,” “always always” chose the plain English version. It is simply a matter of enhancing the clarity of what you’re saying, easing the readers ability to process what you are saying now, he explained.
Bacharach offered practical strategies to enhance the clarity of legal writing on the recent CLE webinar, “Legal Writing: Striving For Clarity.” He recently wrote the book, “Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word.”
Four Easy Steps
There are four easy steps to enhance the clarity of legal writing: create context before detail; relax your diction by using simple language; link the information in sentences; and convey information in manageable chunks.
He said that whether a lawyer is writing a memorandum, letter to the opposing counsel or a brief, persuasive writing is the goal, but “we can persuade our readers only if they understand what we have to say.”
Whenever a reader has to pause, or worse, go back to something that they’ve already read, you have lost the momentum of your argument, and that is poisonous to persuasion, said Bacharach.
The reader needs to know in advance why the details are important so that as he or she is reading the details, they will be able to derive the significance of those details, suggested Bacharach.
“Take advantage of the immense value to readers of knowing the context for the details as he or she is reading the details,” said Bacharach. It can be as simple a adding a sentence or two at the start of a paragraph identifying the issue.
He explained that every reader has constraints in their short-term memories, so it is important to be aware of that fact when drafting legal documents.
Ways to provide context for an argument include giving an informative introduction, crafting meaningful headings and providing topic sentences.
Readers do not know when they embark on reading a legal document what facts are important, so inform and empower your reader with your opening words, said Bacharach.
Providing context throughout the entirety of a legal document can be done by providing a mini-introduction or an umbrella paragraph to start each analytical section.
The function of headings is to impart substantive meaningful information to allow the reader to crystalize in that particular section the legal and factual context for that section.
Informative meaningful headings aid the readers ability to recall the content they had read. As they embark on reading prose, they know immediately what they are looking for, and more readily appreciate the legal and factual context for all of the details in that particular section, said Bacharach.
Very few legal documents contain topic sentences although they provide immense value to the reader. It guides the reader, allowing them to effectively and quickly comprehend the legal and factual details.
Bacharach said it is important to link the information in your sentences. The goal is to make the reader able to instantly see the relationship between old and new information. Avoid common or empty transitions such as furthermore, moreover, and in addition.
You can learn a lot about legal writing simply by looking at your phone number, said Bacharach.
You are more likely to remember the number when it’s broken down by area code, the first three digits, and then the last four digits than if all 10 digits are listed together.
The same principles apply to legal writing. Breaking down your argument into manageable chunks can help your writing stand out and increase momentum for your case. “That’s how readers process what you have to say.”