Seeing Through Legalese: More Essays on Plain Language by Joseph KimbleCarolina Academic Press, Durham, North Carolina, 2017, 273 pages, $25.00
Lawyers are America’s best-paid writers. All day long, they write for a living, composing memos, briefs, contracts, letters and emails. Writing is critical to the legal profession. Good writing helps us understand agreements, arguments, concepts and rules. Good writing entertains, informs and persuades. Good writing affects the administration of justice. Conversely, bad writing bores, complicates, confuses and misleads ─ and goes unread. A lawyer’s arrangement and choice of words will make the difference between a client’s winning or losing, determine how to interpret a contract and ascertain whether someone has followed or broken the law.
Clear legal writing is not always the norm. Readability is important to all readers but less so to some writers. Writing precisely is tiresome and time-consuming. To avoid the hard work of thinking and writing for the reader ─ the only person who counts in writing ─ lawyers use complex terminology and sentence structure. But jargon and legalese detract from reader comprehension and writer credibility.
Many factors cause lawyers to write turgidly, including a limited knowledge of how to write in plain English and a belief that readers prefer dense writing to simple, interesting, easy-to-understand writing. The legal profession has not always trained lawyers to write lucidly. Most lawyers have memories of law school, reading cases written with fanciful, vague verbiage and opaque, impenetrable organization. These models advance the mistaken view that legal writing should be artful rather than helpful to readers who read to make a decision and who need and want only what will lead to a reasoned, correct decision.
Lawyers have many tools to help them write clearly. They can write in everyday Anglo-Saxon English. They can eliminate ornamental, foreign and long words. They can prefer short sentences to long ones, use topic sentences at the beginning of paragraphs and state their point at the beginning of their discussion. They can explain things only once and put related matters all in one place. They can write concretely to avoid conclusory statements. They can rid their writing of adjectives, adverbs, cowardly qualifiers and overblown intensifiers. They can write concisely ― eliminating unnecessary, outdated and repetitious words and phrases ― and precisely. That means placing modifiers correctly and writing in the active voice, without negatives, complex conditionals, nominalizations (preferring nouns to verbs), or metadiscourse (writing about your writing).
Joseph Kimble, a leading advocate of the plain-language movement, has just published a book suggesting these techniques. His book, Seeing Through Legalese: More Essays on Plain Language, tells readers how to transform writing from convoluted and obscure to simple and concise. Kimble, the Distinguished Professor Emeritus at Western Michigan University Cooley Law School, has already published dozens of articles and two books on legal writing: Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government and Law. He has served as drafting consultant to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States and led the redrafting of the Federal Rules of Civil Procedure and the Federal Rules of Evidence. He has won many awards for his writing and as a leading plain-language advocate and educator.
Seeing Through Legalese, Kimble’s latest and most definitive book, is particularly candid and cogent about legal writing. It is a must read for law students, practitioners and all those who wants to improve their legal writing or to learn new and better ways to teach legal writing to law students and colleagues. Kimble notes the complications that result from unclear or complex language and gives substantive tips on how to write clearly and effectively. Apart from being extremely helpful, Seeing Through Legalese is an easy read. Kimble follows his own advice by using plain language throughout his book.
Kimble identifies two main reasons for the professional deficiency in legal writing. The first is the law schools’ occasional neglect to teach students proper drafting. The second is the limited models to which lawyers can turn. He attributes this deficiency to the “dense, verbose, antiquated drafting” techniques formbooks offer. Through an assortment of examples and comprehensive instructions, Kimble’s new book is meant to cure this deficiency.
Seeing Through Legalese compiles different essays, broken up into three parts. In part one, Kimble rejects legalese and offers humorous examples to show why plain legal writing is imperative. He also gives personal accounts of some lessons he learned from his contributions redrafting the Federal Rules of Civil Procedure and Federal Rules of Evidence. He offers side-by-side examples of the original rules and the redrafted rules. Kimble uses these examples to teach legal writers to transform their writing from confusing to clear. His examples show the need for concision and plain language. Kimble also shows how structuring words in a logical and sequential format will significantly affect a reader’s ability to understand. He pushes for the eradication of “shall” in legal writing because of its ambiguity and gives four ways to break up long sentences. To conclude part one, he debunks some of the prevailing myths against writing.
In part two, Kimble gives practical advice on how to write with clarity and to format citations favorably for the reader. He describes how he became a passionate defender of plain language and refutes some common objections to its use in legal writing. One objection is the belief that clients and supervisors expect legalese, despite the overwhelming evidence that readers disrespect those who use it. Kimble also gives pragmatic tips for students writing in journals, such as what to do with footnotes, how to assemble sentences and how to persuade. He dedicates one essay to how to edit resourcefully and another to telling employers how to test a job candidate’s writing skills.
Part three compiles interviews and remarks from his acceptance of awards for his writings and influence in the legal profession. In these interviews and remarks, Kimble articulates his passion for plain English and his lifelong dedication to eradicating legaldygook. He clarifies some of his own critiques against legal writing he identifies as poor examples, such as jury instructions and explains why clarity in legal writing is essential. He gives law students advice on actions they can take to avoid legalese and offers suggestions for books and essays on legal writing.
Seeing Through Legalese: More Essays on Plain Language is an indispensable book for any lawyer or legal professional who wants to write better. Kimble offers funny anecdotes of triumph and dismay in his fight for legal-writing clarity. His examples and advice make learning to write entertaining and painless. As Kimble explains, “[i]t’s not dumbing down to write clearly for your reader in legal, government, and business documents. It takes great skill, and readers love it.”
Gerald Lebovits is an acting Supreme Court justice in New York County and an adjunct at Columbia, Fordham and NYU law schools. Cynthia Moore is Justice Lebovits’s judicial fellow and a rising 3L at Syracuse University College of Law, where she serves on the Law Review.