This entry is dedicated to law-school students: new lawyers must decide on what to do when the boss demands legalese. Ray Ward at the (New) Legal Writer recently brought his readers’ attention to the issues concerning “What To Do If Your Boss Prefers Legalese.” Ray recommended Wayne Scheiss’s essay “When Your Boss Wants It the Old Way.” But Wayne’s advice is mistaken.
Wayne apologetically advises his readers that the issue isn’t worth the challenge, and he means the fruits of challenging the boss, not that winning the challenge is unlikely.
The ideas of the plain-language movement and the modern trends in legal writing are designed to make your writing clearer, easier to read, and precise. Those are important goals for legal writing. Though as a legal-writing instructor it pains me to say this, they are not important enough to risk your job over.
Wayne also advises associate attorneys to do it right when they’re given the opportunity, but everyone knows that.
Wayne commits errors of commission and omission. First, the error of commission: Wayne underestimates legalese’s scope; he presents the issue as one of “new way” and “old way,” as a style appropriate or not to a particular period. But legalese encompasses practices as diverse as prolixity, irrelevance, and boilerplate. Its use engenders still further problems, including the analytic shortcomings of over-citation, superficiality, and over-inclusiveness.
These diverse practices and shortcomings are the main problem today, when doublets, triplets, and archaic expressions like "comes now" mainly characterize the writing of pro-se litigants and, consequently, dislodge easily. When you take account of the vast scope of legalese and its multifarious effects, then you can see contesting it is worth the fight, which you might decide creates an ethical imperative for a truly zealous advocate—isn’t decent writing part of proper representation?—but the only way you can win on the broad theater of legalese is by convincing your boss you’re the better writer. Good luck. Even if you’re clearly superior, your boss’s ego will dictate the terms.
An associate attorney’s only recourse is actively avoiding employers who demand inferior work; this is the advice Wayne omits. You should also know what law schools generally don’t impart: when it comes to writing, many employers demand inferior work because they can’t accept that they’ve been writing poorly, particularly if they’re informed by an employee, whom they’re paying to serve subordinately. (It’s remarkable how attitudes change when you produce work under contract rather than as an employee.) Some prestigious employers are terrible writers, and law school doesn’t prepare students for the sheer egotism of many lawyers who employ associates.
When interviewing, job candidates seriously committed to improving their legal writing should question the interviewer about the firm’s writing practices and policies. I advise declining employment when the job requires inferior writing.
But everyone is notionally in favour of good, clear writing. It's just that some have no real notion as to what this involves.
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