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News: Writing the Law

Judge teaches lawyers the art of clarity

By Lew Moores · January 3rd, 2007 · News
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  Judge Mark Painter wants lawyers to write more clearly.
Graham Lienhart

Judge Mark Painter wants lawyers to write more clearly.



They file in with cups of coffee, glasses of iced tea, lemonade, soft drinks and take their seats in a large room at the Cincinnati Bar Center on Sixth Street downtown. There are more than three dozen of them, most of them lawyers, and they're here on this Tuesday morning for a legal seminar.

Judge Mark P. Painter of the Ohio First District Court of Appeals stands at the front of the room. Straightaway he tells them, paraphrasing a former Yale Law School dean, "There are two things wrong with most legal writing. One is form, the other is content."

And he's off in what has become familiar literary territory for him in the past decade -- the state of legal writing in America. In just moments, he asks, "How is it that legal writing is so terribly, terribly bad?" For the next six hours Painter takes them on a tour of legal writing through the ages and how finally to make it better.

It's a recurring theme and a cause Painter has championed through seminars like this one and through three editions of his book, The Legal Writer: 40 Rules for the Art of Legal Writing. He began doing legal writing seminars in 1997, and he's conducted more than 100 since February 2000, mostly across Ohio but as distant as Los Angeles.

These are lawyers and so a thoroughly professional class, of course; they are older than a law school class but just as casually dressed this day. A sweatshirt or two, flannel shirts, no skirts, a scattering of neckties, sweaters, just a couple of suits, plenty of jeans.

On the other hand, Painter himself is dressed in a dark, three-piece suit, striped dress shirt with white collar and a pale, lime-green necktie. He doesn't shed his suit jacket until well after lunch. His formality in attire contrasts with his breezy, smooth, conversational presentation.

His are seminars about style and form, not content. They are about legal writing as an art -- like all good writing -- and not whether particular legal arguments and opinions are right or wrong.

They are about clarity.

'Judges write badly'
Painter knows bad legal writing. He's been an appellate judge since 1994 and served 13 years before that as a Hamilton County Municipal Court judge. He reads 400 legal briefs a year. He reads filings and court opinions. It can be a dizzying experience.

The appellant complains that the trial court erred in holding that an attorney at law representing a loan association in the distribution of the proceeds of a loan to be made by such association could refuse to answer questions concerning such distribution on the ground that to answer would disclose a confidential communication to his client; and that the trial court erred in holding that a garnishee ordered by the court to appear for examination as to his indebtedness to the judgment debtor was the witness of the judgment creditor and could not be called for cross-examination by the latter.

"Anybody want to read the rest of that case?" Painter asks at the seminar.

The overarching point to all this is not just that lawyers can understand each other; indeed, some might even understand what is going on in the paragraph above. The point is that non-lawyers ought to be able to make sense out of legal writing. It is, after all, about them.

"Lawyers just don't write for other lawyers or judges," Painter says later. "They write for their clients, opponents and sometimes the public. Same with judges. If someone has a case in court, shouldn't they be able to read the judge's decision, to know what happened to them and why? The law is binding on us all. Shouldn't we be able to understand it?"

Those who chose the legal profession probably did so with a decent grounding in writing before advancing their pursuits in law school. It could be they had a solid background in good literature. But something happened.

"Then they went to law school and the roof just fell in," Painter tells them. "We started reading cases written by old, dead judges."

They were laden with legalese, and while a certain precision is paramount in legal writing it was often done with a wordiness that defied comprehension. One of Painter's primary bugaboos seems to be sentences, paragraphs, briefs, motions, opinions that run inordinately long and then even longer. The thinking was verbal convolution was lawyerlike.

"It is not just that many judges write badly," Painter writes in Legal Writer. "Cases are selected for casebooks not because they are examples of good writing or even clarity but because they illustrate the precepts of law in that course. ... We think that if judges write this way, then it is the language of the profession, something to be emulated."

'Have a heart'
David Pfeiffer, who has practiced law for more than 30 years and has served as a magistrate for more than two decades in Hamilton County Probate Court, attended the seminar. He was an English major in college and taught English for a time. Communication, he says, is important, and it's never too late to fine-tune and learn more.

"Not only does the law change, but the way one expresses oneself in the law apparently seems to be changing, too," Pfeiffer says. "Getting away from a lot of the clichés. The judge has been spearheading a movement to get away from that, to open up a fresh perspective on legal writing. I appreciate that someone of his caliber is emphasizing that part of the law."

Painter's rules are simple: keep it short and to the point.

"Any sentence over 35 words and even sophisticated readers will have trouble understanding it," Painter says.

Indeed, many of the bad examples of sentences he uses in his seminar run well over 200 words. Why write "the means by which," when you can write "how"? Why write "was in conformity with" when you can write "conformed"?

Avoid the passive voice. Don't try to show off as a legal writer -- make the reader feel smart. Edit, edit, edit. Avoid words such as "pursuant," "prior to," "subsequent." His exercises cover everything from rewriting mammoth sentences to even choosing a proper typeface to make reading easier.

Painter doesn't claim to be the only one doing this kind of work. Law schools, he points out, are teaching writing simply. He acknowledges Bryan Garner, who has written several books on legal writing, as the "guru" not just of legal writing but writing in general.

Pfeiffer picks up on Painter's theme: "The law is based so much on tradition, and I think many of us who have to write briefs or opinions are a little bit intimidated by the legal past. So many justices have said so many things in a certain way, and we're fearful of deviating from those old modes of expression."

Lawyers might not be the worst writers among professionals, Painter says. That distinction might belong to bureaucrats. Academics can be "sometimes awful, sometimes good."

But the legal profession needs to keep counsel not a coldness or dryness but a passion. He refers to Garner, who writes, "You must have a heart."

Painter would add: "Write well and do justice." ©

 
 
 
 

 

 
 
 
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