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By Danielle DavisRoe, Esq., senior consultant at Affinity Consulting Group
While writing about complex issues is a focus of many attorneys' days, between advising clients, researching the issues, going to court, and negotiating contracts, most attorneys have little time to focus on their writing style. Add on a multitude of pressing deadlines, and attorneys find themselves drafting most legal documents at the eleventh hour, leaving just enough time to proofread, but not enough time to revise. To improve your writing style, you must take the time for revisions that include a focus on your writing style.
The issues caused by a lack of revision time are exacerbated by how law schools and experienced attorneys train young lawyers. Most aspiring attorneys are trained to write complex prose describing complicated concepts.
As a result, legal documents are unnecessarily hard to read. A lawyer’s focus should not be producing documents that are challenging to understand as proof of intelligence and justification for the bill. A lawyer’s focus should be providing counsel and advocacy for his or her clients. The documents should reflect that counsel and zealous advocacy.
Focus on Clear, Concise Language
The focus of most lawyers' revisions should be on simplifying their language. Aim for clear and concise writing whenever possible. Attorneys notoriously use twenty words when two words would suffice. This “lawyerly approach” to writing is deeply-rooted in tradition and how attorneys believe a legal document should read. To help shake the habit, start by ceasing specific bad practices.
Passive Voice
There is a time and a place for passive voice, but legal writing is not it. Active voice is more concise and clearer than passive voice. Passive voice occurs when the person or thing acting is not the subject of the sentence. For example: Plaintiff's leg was broken by the defendant. In this example, the defendant is performing the action (the breaking of the leg), but the defendant is not the subject of the sentence (the plaintiff's leg is the subject). When written in active voice, the sentence reads: Defendant broke Plaintiff's leg. The sentence length reduced from 7 words to 4 words, is easier to read, and paints a better mental picture for the reader. Catching passive voice is easy. Passive voice always contains a form of the verb "to be" and follows it with a past participle – just watch for sentences using that formula while revising a document.
Redundancy
Redundancy comes in all forms. From including both written out and Arabic numerals to redundant phrases (e.g., “last will and testament” and “swear and affirm”), lawyers habitually include unnecessary words. Regarding numbers, the habit of following a written number with the Arabic numeral in parentheses is hard to read and increases the possibly of committing malpractice. If there’s a mismatch between the two, the drafting attorney unintentionally opened the door to litigation over the contract and a possible malpractice claim. Using the Arabic numeral alone makes it easier to ensure that the right number is included and makes the contract easier to read.
Phrases such as "last will and testament" and "give, devise, and bequeath" are the norm in estate planning documents. However, "will" and "give" are sufficient; there is no need to add extraneous words. As lawyers continue to use these redundant phrases it perpetuates the belief that they are required.
Needless Words
Redundant phrases are not the only time lawyers use needless words in their writing. "Until" becomes "until such time as." "Annual" becomes "on an annual basis." "The fact that" appears frequently in legal writing, yet rarely adds any meaning or clarity to the sentence. Remove unnecessary words for more concise, clear writing.
Tools to Help
While there is no magic wand to start writing more concisely, there are tools that can help. Previously the bane of most writers' existence, Microsoft Word's grammar checker has become a useful tool for encouraging simplified, easily-understood language. Not all of its suggestions are worth taking, but many of them are worth considering. Grammar checker is included with Microsoft Word. There is nothing to buy and nothing to install.
WordRake, an add-in for Microsoft Word (Mac and PC) and Outlook (PC only), simplifies legal writing with the click of a button. Using tracked changes, WordRake cuts through extraneous language and produces clear, concise writing. Attorneys can easily accept or reject the proposed changes with the click of a button. While this tool is a bit pricey, WordRake can be life-changing for those who want to focus on writing more concisely. See https://www.wordrake.com for more information.
Grammarly, another Microsoft Word and Outlook add-in, gives users a taste of their magic for free. However, most of their powerful editing features require a premium subscription. When analyzing a document for potential edits, Grammarly frequently proposes two or three alternatives to your existing phrasing, allowing you to select one of the options with the click of a button. Grammarly's suggestions are displayed in a separate pane that also provides helpful guidance on why a change should be made. Grammarly also includes a web-based editor, internet browser add-ins, and mobile keyboards for assistance outside of Microsoft’s desktop Word and Outlook programs. See https://www.grammarly.com for more information.
Find an editor. Find someone else who writes well who is willing to edit your work. Have them edit your writing, tracking their changes as they go. A second set of eyes is invaluable at catching issues that Word's grammar checker, WordRake, and Grammarly will never catch.