Professional Documents
Culture Documents
Legal Writing:
Sense and Nonsense
By Douglas E. Abrams of our legal terminology and descrip- simply persists from blind imitation of
tions from pre-Norman, Latin, Old the past.10
In 1992, the Sierra Club estimated and Middle English, Law French and By the time Mellinkoff wrote in
that the average California lawyer similar sources. Lawyers perpetuated 1963, disdain for lawyers writing and
used a ton of paper each year, a hefty these archaic legalisms with little seri- drafting was as old as our nation. In
pile indeed in a state that had about ous thought about how their contem- 1817, for example, lawyer Thomas
137,000 lawyers.1 The environmen- porary usage often obstructed popular Jefferson reflected on his long career
tal group urged the states Judicial understanding of lawyers expository and chided lawyers for making every
Council to enact a rule requiring use writing and legal drafting.7 In turn, other word a said or aforesaid
of recycled paper in documents filed these legalisms helped perpetuate writ- and saying everything over two or
in the courts, a move that the group ten expression whose overall content three times, so that nobody but we
estimated would save more than 6,000 and style, by inadvertence or design, of the craft can untwist the diction
trees annually.2 often mangled any meaningful bond and find out what it means.11 Law-
Two days later, a Los Angeles Times between lawyer and reader. yers language, a prominent New
reader penned a letter-to-the-editor With communication the object, York attorney summarized in 1954,
with a one-sentence solution of his Professor Mellinkoff posited in The has long been regarded as the prime
own. If the Sierra Club would like Language of the Law, the principle example of complex, unreadable, often
to save whole forests rather than just of simplicity would dictate that the unintelligible English. Such phrases
a few thousand trees, he wrote, I language used by lawyers agree with as legal technicality, fine print,
suggest that they encourage lawyers to the common speech, unless there are lawyers Mumbo-Jumbo, etc. should
use plain English.3 reasons for a difference. . . . If there be a warning to legal writers.12 By
The letter writer was David Mel- is no reason for departure from the that time, the warning had long gone
linkoff, professor emeritus at the language of common understanding, unheeded.
UCLA School of Law and the ac- the special usage is suspect.8 The The national heritage of public
knowledged dean of the legal profes- remaining reasons for a difference are disdain for lawyers written work,
sions Plain English movement.4 His few, he explained years later, and whose appearance on the printed
classic 1963 book, The Language apply only to the tiniest part of the page Congress member Maury
of the Law, traced the development language of the law.9 Maverick famously disparaged as
of legal language since pre-Norman Mellinkoffs provocative thesis, gobbledygook,13 provided Professor
times and earned a place alongside grounded in his solid historiography Mellinkoff a sturdy foundation. It took
H.L. Menckens The American Lan- about legal archaisms, recalled Jus- his sterling 454-page book, however,
guage for its penetrating analysis of tice Oliver Wendell Holmes classic to ignite the Plain English movement,
the national tongue.5 The difference, challenge to stubborn adherence to whose influence is still felt in leg-
according to a 1964 book review by timeworn common law doctrine. It is islative halls, courts, administrative
poet (and Massachusetts Bar member) revolting, wrote Holmes in The Path agencies, and law school legal writing
Archibald MacLeish in the Harvard of the Law (1897), to have no better classes. The movements adherents
Law Review, was that Mr. Mellinkoff reason for a rule of law than that so argue that, to the extent possible, law-
is wittier than Mencken as well as be- it was laid down in the time of Henry yers writing and drafting should use
ing considerably more civilized.6 IV. It is still more revolting if the language and style reasonably compre-
The Language of the Law demon- grounds upon which it was laid down hensible to lay readers (that is, to most
strated that Americans inherited much have vanished long since, and the rule Americans).
lawyers. . . use eight words to say what could The Lawyers Bookshelf, N.Y.L.J., Dec. 12, 57 Id. at 185-96 (Appendices A-E).
1980, at 2 (reviewing Richard C. Wydick, 58 Id. at 197-98 (Appendix F).
be said in two. We use arcane phrases to
Plain English For Lawyers (1st ed. 1979)) 59 Id. at 199-203 (Appendices G-H).
explain commonplace ideas. Seeking to be
([T]here are only two types of writing good 60 Id. at 219-221 (Appendix J).
precise, we become redundant. Seeking to be
writing and bad writing. Good legal writing 61 Edwin Newman, A Civil Tongue 19
cautious, we become verbose. Our sentences
is simply writing in plain English about a legal (1976).
twist on, phrase within clause within clause,
subject.). 62 See David Mellinkoff, Attorney Advocated
glazing the eyes and numbing the minds of our
37 Archibald MacLeish, supra note 6, at 490. Plain English, supra note 4, at A17 (obituary
readers.). See also Henry Weihofen, Legal
38 David Mellinkoff, Legal Writing: Sense quoting 1963 review by L.A. Times book critic
Writing Style 8-104 (2d ed. 1980) (discussing
and Nonsense, supra note 9, at 61-99. Robert Kirsch).
these four fundamentals).
39 Id. at 61. 63 University of California: In Memoriam,
19 Aristotle, Nicomachean Ethics, Book II,
40 Id. at 62. 2000, David Mellinkoff: Los Angeles 181,
Ch. 1 (H. Rackham, trans. 1926).
41 Id. at 65. http://content.cdlib.org/xtf/view?docId=
20 Lewis C. Henry (ed.), Best Quotations
42 Id. at 91. hb1r29n709&doc.view=frames&chunk.
For All Occasions 263 (1964).
43 Id. at 100-113. id=div00047&toc.depth=1&toc.id= (statement
21 Myron Cope, One of Pittsburghs Natural
44 Id. at 100. of Benjamin Aaron, Jesse Dukeminier, Kenneth
Resources, in Remember Roberto: Clemente
45 Id. at 114-25. Karst and Herbert Morris).
Recalled by Teammates, Family, Friends and
46 Id. at 114. 64 David Mellinkoff, Legal Writing: Sense
Fans 404 (Jim OBrien ed., 1994).
47 Id. at 126-44. and Nonsense, supra note 9, at xii.
22 David Mellinkoff, Legal Writing: Sense
48 Eugene C. Gerhart, Quote It II: A 65 Id.
and Nonsense, supra note 9, at xi.
Dictionary of Memorable Legal Quotations
23 David Mellinkoff, 85, Enemy of Legalese,
462 (1988).
supra note 4, at 37.
49 Jacques Barzun & Henry F. Graff,
24 David Mellinkoff, Legal Writing: Sense
The Modern Researcher 34 (5th ed. 1992); Douglas E. Abrams, a law
and Nonsense, supra note 9, at xii.
Elsie Goth Marshall, 1936: Red Cloud, The professor at the University
25 Id. at 1-14.
Nebraska Alumnus (1936), available at http://
26 Id. at 2. of Missouri, has written or
www.unl.edu/Cather/works/nonfiction/bohlke/
27 Id. at 13. co-authored five books.
interviews/1936.htm (quoting Willa Cather).
28 Id. at 1. Four U.S. Supreme Court
50 David Mellinkoff, Legal Writing: Sense
29 Id. at 15-43. decisions have cited his
and Nonsense, supra note 9, at 126.
30. Id. at 15. law review articles.
51 Id. at 140.
31 Id. at 16.