Eschew Obfuscation – Writing is for Communication

Sometimes stating the obvious is not a bad idea. That’s particularly true when it comes to lawyers. Many lawyers think that they are so smart and so skilled, that they have to show the world every day just how true that is. Very few non-lawyers would think that it is more appropriate to say, “Enclosed herewith please find,” as opposed to simply, “I enclose.” But we see that every day in legal writing.

Maybe that’s another part of the problem — calling something “legal” writing. Writing is writing, and the purpose of writing is to communicate. In order to persuade, you first need to be understood. In a highly regarded thought piece on advocacy, 5th Circuit Judge John Godbold reminded all of us that it is not what we know that matters in an appeal, but what we communicate. John C. Godbold, Twenty Pages and Twenty Minutes—Effective Advocacy on Appeal, 30 Sw. L.J. 801 (1976). The article describes a civil case from Judge Godbold’s tenure as a circuit judge that is an object lesson in failed communication. The case involved either five or six issues by the judge’s count. The appellant’s brief stated these as 22 separate issues, the appellee’s brief grouped them into 16 issues, and the reply brief contained yet a third grouping. Each point in the appellee’s brief was prefaced with a statement like this: “This point covers appellant’s points 2, 5, and the first half of 7, and the second half of 14.” These configurations were so perplexing that the judge and his clerk had to categorize the sections of each brief in a chart just to figure out what the critical issues were in the case. As Judge Godbold put it, “Counsel in this case were not engaged in communication but in saying things that were not communicated.”

Lawyers need to keep in mind that simple sometimes really is not only better, but a lot better. In his book Plain English for Lawyers, Richard Wydick recounts a 1596 case in which “an English chancellor ordered a hole cut through the center of a 120-page brief. The chancellor decreed that the author’s head be stuffed through the hole and that the fellow be exhibited in the state to all those attending the court at Westminster Hall.” Most jurisdictions have adopted page or word-count limits to make such extreme measures unnecessary. But the broader point remains a good one — limits are just that, and a shorter, simpler brief may present a more coherent and more persuasive argument than a long, rambling one.

Sometimes good advice comes from your friends and neighbors. The North Dakota Supreme Court has provided lawyers with a long list of appellate practice tips, many of which address good writing. (Reviewing the entire list of tips is worth your time. It is available at http://www.ndcourts.gov/court/Filing/Tips.htm.) These are a few of our favorites:

“Judges are not ferrets.”

When the court said this in Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D. 1996), it was referring to the need to develop an adequate record to demonstrate reversible error. But the same could be said about ferreting out arguments in your brief. Some of the court’s other tips—”Justices don’t like to have to look for the pony” and “Don’t make your brief a mystery”—similarly implore lawyers to state their arguments up front and state them clearly. Ideally, your brief should explain to the court as directly as possible why your client should win. If you can state concisely at the outset the relief for which you are asking and why you are entitled to it, you will have made the judge’s job that much easier.

Seek to persuade, not to show how much you know.

The natural inclination of lawyers is to use legal jargon and big words to show how smart we are. Don’t fall into this trap. “Legalese” tends to obscure rather than illuminate, so avoid it when possible. The same is true for technical jargon from other disciplines. If your subject requires scientific or other technical language, define the terms as clearly as you can. Remember that the judge does not know as much about your case, and may not know as much about the relevant industry or particular area of law, as you do. Even so, your brief should make the judge feel smart. The judge will not feel smart while spending precious time slogging through dense prose. When the judge is finished reading your brief, you want the judge to understand your case and be convinced that your position is the only logical conclusion.

You serve your client by maintaining your own credibility.

Several of the court’s other suggestions—such as “Cheap shots at the other side will only hurt your case” and “Acknowledge obvious weaknesses in your case”—are also in this vein. And “Drop the hyperbole!!!” was deemed important enough to warrant three exclamation points. If you hide behind cheap shots and hyperbole, at best, the judge will perceive you to be unprofessional; at worst, the judge will suspect that your argument is meritless. Either way, you will not have made your client more likely to prevail. The court also cautions that “[o]mitting key facts destroys your credibility when the other side points them out.” Better to confront and explain bad facts than to let your opponent explain them for you.

“Good legal writing should not differ, without good reason, from ordinary well-written English.”

This tip is a quote from Richard Wydick’s Plain English for Lawyers, and several other tips on the list fall under this umbrella. Using proper grammar should be a given, but beyond that, the court has a few suggestions about what makes good writing. Don’t use more words when fewer will do. Don’t use a long word if a simpler one will do. Eliminate unnecessary adjectives and adverbs. And don’t relegate substantive arguments to the footnotes. All lawyers have certainly heard this advice before, but it is worth bearing in mind, especially while following the court’s final admonition about brief writing: “Proofread. Then proofread again.”

It should come as no surprise that such sound advice comes from our neighbors to the northwest. After all, the prairie has long been a source of wisdom in the law. Justice John E. Simonett, who was known for his ability to communicate complex ideas clearly, found inspiration for his insightful essay “The Common Law of Morrison County” (http://mnbenchbar.com/2011/09/the-common-law-of-morrison-county/) from his years of practice in Little Falls, Minnesota. Justice Simonett’s brilliance as a wordsmith was that he made reading nearly effortless. It should be the goal of every lawyer to aspire to that level of clear persuasion. I know it is the hope of all judges that they succeed.

Reprinted with permission of Minnesota Lawyer ©2015