Legal Writing Pet Peeves—From the Trenches

By: Colin M. Black

Prior to teaching LPS, I practiced law with a mid-sized Boston firm. Part of my responsibilities included facilitating professional development courses, including a course on advanced legal writing.  While developing that course, I surveyed senior attorneys for their biggest writing pet peeves. Here are a few of the top violations.

  1. Wordiness

Good legal writing requires lawyers to write concisely. Using 5 words when one will suffice suggests a lazy drafter. Lawyers and judges don’t have time to read lengthy material, whether office memoranda or appellate briefs. Indeed, courts enforce page limits regardless of the number or complexity of your issue(s) to encourage brevity. Further, wordiness often leads to vague or confusing narratives.

To keep your writing concise, consider replacing nominalized phrases with more succinct revisions. For example, rather than write “The court made a decision . . .,” simply write “The court decided . . . .”

You can also replace or eliminate parts of wordy phrases. For example, use the word “regarding” instead of writing in regards to or use the word because instead of the long-winded due to the fact that. During one of your editing sessions, try to eliminate as many unnecessary words as you can.

  1. Conflating spell-check with proofreading

Too many writers simply rely on their computer’s spell-check function as their primary (and sometimes singular) editing tool. While spell-check is a very useful word processing tool and should be used before you submit any writing, spell-check must never replace proofreading.  Spell-check cannot identify correctly spelled words that are simply typographical errors. For instance, spell-check would not flag it’s if you meant its, their if you intended there, or affect if you should have used effect. Further, spell-check will not flag vague or awkward sentence structures.

Proofreading is a fundamental and critical part of the writing process. Thoughtful consideration of word usage, phraseology, grammar, context, and organization will do wonders for your writing. Your reader will thank you. Moreover, your credibility and reputation as an effective legal writer will improve. So, before (or after) you use your computer’s spell-check function, proofread your writing before you submit it to the end user.

  1. Misplaced modifiers

A misplaced modifiers is a phrase or clause that is improperly separated from the word it modifies or describes. The separation causes the sentence to sound awkward and the meaning to be vague. Or worse, it changes the meaning completely. As a general rule, you can correct misplaced modifiers by moving the modifier to a more accurate place in the sentence, usually next to the word it modifies.

For example, compare: “While walking on the beach, I found a gold woman’s necklace” with “While walking on the beach, I found a woman’s gold necklace.” Or, “The dog’s cold bowl of water lay on the floor” with “The dog’s bowl of cold water lay on the floor.” Proper placement of the modifier will accurately convey your message.

  1. Stodgy Legalese

Every lawyer will tell you they hate legalese but most lawyers will not entirely eliminate it from their writing. Indeed, most legal documents still contain legalese. And, most people still need lawyers to translate these legal documents.

In the past few decades, law schools, the government, and law firms have encouraged the use of plain language in legal writing. While some improvement has been observed, many archaic, unnecessary, and awkward words and phrases continue to persist.

Writing in plain English may feel like a betrayal of professional customs. The benefits, however, are worth it and your reader will thank you. So happily eliminate every “whereas,” “heretofore,” “henceforth,” “now comes the plaintiff,” “witnessth,” “enclosed please find,” and all their stodgy friends.

By no means are these the only writing traps for legal writers. Help yourself avoid these and other writing and grammar errors by thoughtfully and carefully reviewing, critiquing, and revising your own writing.