Commentary: Strive for clarity in your legal writing

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The days of lawyers providing a service by either creating or interpreting secret “lawyer code” are gone.

I think lawyers at one time felt that by creating a secret language that everyone else had a hard time interpreting, they were creating job security for themselves.

But the current trend calls for less flowery language and more clarity.

Lawyers provide a valuable service, not because it’s something no one else could do, but because people don’t want to take the time to do it. It’s just like any other service: I could certainly grow my own vegetables in my garden, but I choose to buy them because I don’t want to take the time and I hate picking weeds.

The same is true for legal work. Lawyers provide value by gathering knowledge and experience, and using that knowledge and experience to help people interpret contracts, go through litigation, adopt a child, etcetera.

Many young lawyers get out of law school thinking that they have to make contracts, briefs or other legal documents as complex as possible to show that they are providing value to the client. This simply isn’t the case.

The most effective way of providing a service is by creating clarity. A great lawyer can take a mess, boil it down to a few main issues and solve those problems. Clarity.

Make it clear

A great lawyer can put together a contract or a brief that just about anyone could pick up, understand what the facts are and understand what the writing is meant to achieve.

Contracts typically go wrong when there is a misunderstanding about what the parties’ intentions were. So go out of your way to make sure the language is clear and easy to understand. If the contract were being read 20 years from now, would the agreement between the parties be clear?

If your practice involves drafting contracts, focus on writing what you mean. I realize that sounds simple, but so many times it’s not done.

Use a definitions section to your advantage. Explain some of the complexities that are involved in the contract and define them in a word or two. Then, as you refer to those concepts throughout the contract, everyone will understand what is meant.

Lawyers are, and should be, very concerned with not leaving any holes that would allow someone to get around the contract terms. However, don’t take this healthy concern too far.

Be aware of the use of repetitive words. When revising your documents, look critically at whether it’s necessary, for example, to say “divulge, disclose or communicate.”
When you come across potentially repetitive words, use your dictionary:

The definition of “divulge” is (1) “to make public; (2) “to make known.”

The definition of “disclose” is “to make known or public.”

The definition of “communicate” is “to convey knowledge of or information about: make known.”

Clearly, divulge and disclose can be used interchangeably, so there is no need to have both.

Also, it seems impossible to “make information known or public” without “conveying knowledge of or information,” so “communicate” is also redundant.

The same concept should be used for briefs. The best advice one of the partners at my firm gave me was that the judge reading your brief can get bored, too.

The most persuasive briefs I’ve read have been straight to the point, entertaining, use common sense, and, and above all, are clear.

As with a contract, write what you mean. Also, use the simplest form of the word. Someone who has made it to a judgeship likely is not impressed by your vocabulary; he or she is impressed with your ability to clearly express your ideas and arguments.

Set out in front exactly what you want the judge to know and what you want the judge to do.

Make his or her job as easy as possible.

Also, appeal to the common sense of the judge. It is very easy to focus on technical aspects of the law when writing a brief and ignore the common sense arguments.

Take a step back and think about, practically, why the judge should side with you. Does it make sense? Is it good for public policy? Is it good for the justice system and precedent? In addition to all of your legal arguments, these are valuable and persuasive arguments to include.

Finally, when technical legal arguments cannot be avoided, try analogies. Real life, every day analogies can be very helpful when dealing with complex concepts.

The key to either clear contracts or persuasive writing in litigation is to take a step back and read your writing with an eye toward your audience.

Imagine if you picked up the material knowing nothing at all about the underlying facts.

Would you be able to understand what was being said?

If not, then revise, revise, revise.

Cindy L. Fryda who graduated from Marquette Law School in 2003, is a labor and employment attorney at The Schroeder Group S.C., Attorneys at Law. She started out working at a boutique labor and employment law firm, then she handled labor and employment issues for a $3.5 billion publicly traded company. She can be reached via e-mail at [email protected].