Writing is, literally, self-expression, or in E.B. White’s words, "the Self escaping into the open." Style is the writer. Who you are, rather than what you know, will determine your style. White admonishes beginning writers to approach style warily, realizing that it is they themselves they are approaching.
How important is style to legal writing? It is everything. Contrary to popular thought, style is not separate from substance. Style needs substance as its foundation, and substance needs style for its expression. But more important, good style persuades the reader, because it reveals to the reader the writer’s character, sincerity, and passion.
Beginning writer assume that style is a matter of dressing up the writing with fancy words, phrases, and sentences. That is a mistake. When you try to dress up your writing, you obscure your style — your self — behind verbiage. To find your own style, your own self as a writer, you need to strip fancy things away, because they do not express you. Achieving style is more subtraction than addition. White admonishes the writer who wants to achieve style to "begin by affecting none . . . ."
Subtract excess words. Professor Strunk put it well: "A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts." In Clear Understandings, Ronald Goldfarb and James Raymond write, "Wordiness is to a writer what obesity is to a runner."
Subtract fancy words. White advises, "Do not be tempted by a twenty-dollar word when
there is a ten-center handy, ready, and able."
Good legal writing is nothing more than good English applied to the law. So subtract legal jargon from your writing. Legal jargon includes all those hoary words and phrases that only lawyers use (but never in actual conversation): things like aforementioned, herein, hereinabove, hereinafter, provided that, pursuant to, to wit, and vel non. Legal jargon serves no useful purpose. Worse, it creates an unnecessary language barrier between lawyers and everyone else. If you wouldn't use it in regular conversation, strike it from your writing.
Be careful with legal terms of art: legal terms with specific meanings. Unlike jargon, they actually serve a purpose — but only if they convey a precise meaning. Hearsay is a good example: a word with a precise definition that lawyers and many lay people understand. But be careful, because many so-called terms of art fail the purpose of conveying a precise meaning. Res gestae comes to mind; it’s easy to translate ("things done") but not so easy to say precisely what it means in context. If you can't state precisely what a word means, don't use it. Figure out what you want to say, and find the words that say exactly that.
Subtract Latin and other foreign-language phrases. Assume that English is the only language that the reader understands.
Subtract purple prose — ostentatious writing. Bryan Garner warns, "When writers delight too much in their own words, and subordinate the message to their way of expressing it, the prose often turns purple." Beware when you find yourself congratulating yourself on how clever your writing is; that is a sign of purple prose. Use figures of speech sparingly. You purpose is to persuade, not to entertain or show off.
Subtract everything that calls attention to the writer or the writing, because such things divert attention from the message. White advises, "Write in a way that draws the reader's attention to the sense and substance of the writing, rather than to the mood and temper of the author."
Avoid elegant variation — using different words to convey the same idea, under the mistaken notion that "variety" makes for good writing. As Richard Wydick points out, readers of legal documents assume that a shift in terms means a shift in meaning. If you don’t intend a different meaning, don’t change words. Be consistent with your use of terms, and you will make it easier for the reader to follow your train of thought.
Never overstate. When the reader detects overstatement, the writer loses credibility. When the judge detects overstatement, the lawyer often loses the case.
Always revise and rewrite. Don't be afraid to cut your work to pieces — literally — throwing away what doesn't work and rearranging what's left. If you're handy with a computer, use the cut-and-paste features of your word processor. If you're not, use a pencil or scissors to cut and rearrange.
Use your ear. If the writing sounds stilted or doesn’t make sense when read aloud, it needs work.
Develop your ear by reading good literature. Human beings learn language primarily by imitation. Unfortunately, most of what we lawyers read every day is dreck, and we have to fight to keep the dreck from seeping into our writing. When we read good literature, we learn what good writing sounds like, and some of that goodness will inevitably creep into our own writing.
Finally, since your style is you, be yourself when you write. Try to use the same words and phrases in writing as you do in speaking. Garner advises, "Try to express yourself honestly, clearly, unpretentiously. Your natural voice will emerge."
[Originally published in the May 2001 issue of For the Defense. Copyright © 2001, DRI
(Defense Research Institute, Inc.) and Raymond P. Ward.]