The Uncommon Law of Learned Writing

By Chinua Asuzu

The Uncommon Law of Learned Writing encourages and motivates lawyers and nonlawyers alike to prefer plain English to the legalese and verbosity that have plagued legal writing for centuries.

• Language: English
• Publisher: Partridge Publishing Africa
• Release date: Sep 11, 2015
• ISBN: 9781482809053

Chinua Asuzu

Chinua Asuzu is Africa’s leading legal-writing scholar. He’s the plain-language maven whose works include Brief-Writing Masterclass; Fair Hearing in Nigeria; Judicial Writing: A Benchmark for the Bench; and Learned Writing. Chinua is the dean of The Write House, the senior partner of Assizes Lawfirm, a Fellow of the Chartered Institute of Taxation of Nigeria, a Fellow of the Society for Advanced Legal Studies, and a member of the Commonwealth Association of Legislative Counsel. A jurisprudent, Chinua teaches legal writing at law firms and law schools, and at private and public forums. Chinua’s expertise spans the gamut of legal writing: academic legal writing, brief-writing, business writing, contract drafting, judicial writing, legislative drafting, and litigation drafting. An upwrite and writeous autodidact, Chinua is all write.

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Copyright © 2015 by Chinua Asuzu.

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Scripture quotations marked KJV are from the Holy Bible, King James Version (Authorized Version), first published in 1611, and quoted from the KJV Classic Reference Bible, Copyright © 1983 by the Zondervan Corporation.

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Contents

I Give You That Orange

Acknowledgements

Table Of Cases

Prologue: Lawyers’ Language Is Pretentious

1. Legal Writing Is A Mess

2. I Give You That Orange

3. Mylward v Welden

4. Enter The Write House

5. Write To Be Read

6. Why Do Lawyers Write? For Whom? And How Should They Write?

7. HIV-AILS: Legalese And Verbosity Ruin Legal Writing

8. Prefer The Active Voice

9. Don’t Hide The Subject

10. Don’t Bury Your Verbs In Abstract Nouns And Adjectives

11. Learn Transitive, Intransitive, And Linking Verbs

12. Don’t Be Superstitious—You Can Start Sentences With and, because, but, nor, or, so, and yet

13. Uphold The Oxford Comma: The Pope And Mother Teresa

14. Eschew Intensifiers: A Tiger Does Not Declare His Tigritude

15. Shorten Your Sentences And Paragraphs

16. Use Parallel Structure

17. Learn How To Use Bullets, Capitals, Enumeration, Italics, Numbers, And Tabulation; And Learn Why You Should Never Underline

18. Abjure Double-Past Constructions

19. Use Possessives To Introduce Gerunds And Solve Fused-Participle Difficulties

20. Supplant Redundant Expressions With Alternatives Supplied

21. Let’s Go Which Hunting!

22. Situate Your Modifiers To Eliminate Confusion

23. Just Between You And Me, Use Doublet And Serial Pronouns Correctly

24. Spurn Elegant Variation And Inelegant Fixation

25. Strike Fatuous Lawyerisms Like Aforesaid And Similar Antiquated Expressions

26. Mitigate The Inbuilt Gender Bias Of The English Language (Or, Let’s Talk About Sex)

27. Dethrone Expletives And Metadiscourse

28. Moderate Authorial Self-Reference

29. Use Transition To Boost Prose Readability

30. Learn Proper Use Of Abbreviations, Acronyms, Initialisms, Apostrophes, And Contractions

31. Master Brackets, Hyphens, And Parentheses

32. Learn Attribution, Footnotes, And Quotations

33. Think Before You Write.

Epilogue: Lawyers’ Language Is Pompous

Bibliography

Notes

Dedicated and recommended

to the

Nigerian Bar Association

I give you that orange

By this instrument under my hand and seal, I hereby alienate, bestow, confer, confirm, donate, give, grant, present, provide, and transfer unto you, whole and entire, all and singular, my claim, estate, interest, power, right, and title, in, over, and to, and advantage of and in, all that orange fruit, botanically known as Citrus sinensis of the genus Citrus of the family Rutaceae, more particularly described and delineated in the schedule to these presents, with all the rights, privileges, and immunities appertaining thereto, in accordance with and to the maximum extent of the law for the time being in force, with all its rind, skin, juice, pulp, fibre, membrane, and pips, together with all the liquid, solid, and gaseous components, elements, and ingredients thereof, and all other appurtenances appertaining thereto, and all right and advantage therein, with full, total, absolute, and complete power and right to bite, cut, eat, kiss, osculate, lick, masticate, chew, munch, suck, inhale, and otherwise consume the same, or give the same away, or sell or dispose of the same, or bequeath the same, with or without its rind, skin, juice, pulp, fibre, membrane, or pips, with some or all of its liquid, solid, or gaseous components, elements, and ingredients, and with some or all of its other appurtenances, as fully and effectually in all respects as I myself could, anything hereinbefore, or hereinafter, or in any other deed or deeds, instrument or instruments whatsoever, to the contrary in anywise notwithstanding, on the date first above mentioned.

Acknowledgements

Chisom Ihekwaba, Enobong Ubia, Ibukun Anibijuwon, Michael Igweobi, Ololade Olukowi, and Senator Iyere Ihenyen helped in proofreading this work. I thank them.

For their advice, encouragement, inspiration, and support, I thank my learned friends:

• Achike Achukwu

• Asishana Bayo Okauru

• Babatunde Ajibade SAN

• Babatunde Fashola SAN

• Bryan A. Garner

• Epiphany Azinge SAN

• Emeka Anolefo

• Fabian Ajogwu SAN

• Funke Adekoya SAN

• Gbenga Oyebode MFR

• Ikechukwu Ikeji

• Itse Sagay SAN

• J B Daudu SAN

• Kayode Sofola SAN

• Maxwell Ukpebor

• Olisa Agbakoba SAN

• Theophilus Enuma, and

• Yemi Osinbajo SAN.

Table of cases

• Coroles v Sabey 79 P3d 974, 981 (Utah App 2003)

• Ekyo v Toyo [2012] 8 NWLR (Part 1303) 460

• Eminence Capital v Aspeon 316 F. 3d 1048, 1053 (9th Circuit 2003)

• Lambert v Lewis [1982] AC 225

• Levicom v Linklaters [2009] EWHC 812 (Comm)

• Miller v Jackson [1977] QB 966

• Mylward v Welden (1596) 21 Eng Rep 136 (Ch)

• People v Walsh (NY Criminal Court, 3 Jan., 2008)}

• In re Marriage of Shaban 105 Cal. Rptr. 2d 863 (Ct. App. 4th Dist. 2001)

• Sheldon v Metro-Goldwyn Pictures Corporation 81 F2d 49 (2d Cir. 1936)

• Socpen Trustees Ltd v Wood Nash & Winters {unreported, Jupp J, Queens Bench Division, 6 Oct. 1983}

• Zito v Leasecomm No. 02 Civ. 8074 (GEL), 2003 WL 22251352, at 10 (SD NY Sept. 30, 2003)

Prologue: Lawyers’ language is pretentious

The witness swore to tell the truth, the whole truth, and nothing but the truth, so help him, God. The clerk asked him whether he understood English. The witness said yes. The lawyer for his side did the direct examination. Then the opposite lawyer gathered her papers and came over to start cross-examination:

When I was a kid growing up in Onitsha, occasionally I would go to the courthouse to observe proceedings. The prologue and epilogue were actual scenes I witnessed in court.

Some of the lawyers were quite impressive, the judges awe-inspiring. The lawyers used many big words. I had never heard most of the words. And I did not have a big dictionary—I only had Michael West. I looked forward to growing up to become a lawyer so I could use words like that. I wanted to speak the kind of English that would make people dive for their fat dictionaries.

Later, when I went to university, the community encouraged pompous language with big words and complex phrasing.

Examples:

1

Now I know better. The purpose of language is to communicate, not to depress, impress, oppress, repress, or suppress. Don’t write to impress—write to express. Lawyers should join the rest of humanity in leaving the Dark Ages behind. There once was a time when everyday folk spoke one language, and learned men wrote another. It was called the Dark Ages.²

1. Legal writing is a mess

Lawyers have contributed substantially in messing up the English language. The English language has been quite needlessly and foolishly complicated by lawyers, politicians, tradesmen, bad poets, and a whole host of woolly-minded people.³

Lawyers and law students conspire to make their writing as difficult and impenetrable as possible. They actually make efforts to contort their phrasing to attain maximum complexity. They try to maintain linguistic distance from their lay clients, while seeking financial affinity. They deploy convoluted constructions like missiles aimed at their readers. Sometimes consciously, other times unconsciously, lawyers try to render their writing hard to understand. They believe their writing should be arcane and esoteric, comprehensible only to the initiated. They mistake obscurity of expression for profundity of thought.⁴

But if there is any field of human knowledge in which language and writing should be plain, that field is law. Law is not just for lawyers, but also for all members of the community. The era of the law as a clannish, closed, almost cultish club is over. That was the age when any lawyer who [wrote] so clearly as to be intelligible was an enemy of his profession.⁵

This is the age of open communication and respect for lay clients. Like other businesses, law is a service, and clients paying for legal services should understand precisely what they are paying for. And because law concerns the community, nonlawyers generally (not just clients) should understand legal language. To communicate effectively to nonlawyers, as well indeed as fellow lawyers, lawyers must learn to write clearly. Clear writing means clear thinking, and the rigor of writing to a high standard of clarity and simplicity [helps] ensure the integrity of the writer’s analysis.⁶

The disease of bad writing afflicts lawyers of all generations, jurisdictions, and occupations. The older lawyers sometimes write worse than their younger colleagues do. The younger ones naturally look up to their seniors for guidance on all professional matters, including writing. They read judgments of the highest courts, believing, often mistakenly, that those frowning, revered men and women in black must be gurus. Unfortunately, the men in black are at times blank. Mediocre and tawdry judicial writing besmirches law reports around the world. Much good law gets lost in bad writing.

The result of the younger looking up to the elder for writing guidance has been a cascading degeneracy in the language of law. Some senior partners, when shown an associate’s plain-English draft, retort in effect, Go throw some darkness on this document, thinking perhaps the fee will go up. It is not a happy legacy.

In Australia, Canada, England, Gambia, Ghana, Nigeria, South Africa, and the US, many lawyers write poorly. Nigerian law’s highest academic, judicial, legislative, and professional authorities inflict malnourished articles and books; terribly written judgments; shoddily drafted statutes; and grossly deficient briefs on the profession, clients, and the public. Most academic lawyers, arbitrators, corporate counsel, judges, law reporters, litigators, mediators, prosecutors, and transactional lawyers write abysmally.

In legal writing, conventional wisdom is conventional folly. Conventional legal writing is what you, your courts, judges, law professors, law teachers, lawyers, senior advocates, and supervising partners have been doing. Conventional legal writing is mainstream. In writing as in most other fields, mainstream is lamestream. Conventional legal writing is sinful. Repent, for the kingdom of plain English is at hand.

2. I give you that orange

In the US, the plain English movement is over 100 years old. As Professor Judith Fischer reports, A movement for plain English in the law has gathered momentum in the United States for more than a hundred years. A few lawyers advocated plain English in the nineteenth century.⁷

One of those lawyers was Timothy Walker, an Ohio judge. In the article just quoted, learned author Judith Fischer continues, "Timothy Walker… parodied a lawyer saying ‘I give you that orange’:

I give you all and singular my estate and interest, right, title and claim, and advantage of and in that orange, with all its rind, skin, juice, pulp, and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away, as fully and effectually as I, said A.B., am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise notwithstanding.

Walker concocted this legalese to illustrate the virtues of its opposite, plain English."⁸

I could do better than Tim Walker.

I wasn’t always a plain-English advocate. Before I became a born-again legal writer, I could have improved on Walker’s legalese. After collecting a fat deposit towards my professional fees, I would have drafted the orange-gift deed as follows:

By this instrument under my hand and seal, I hereby alienate, bestow, confer, confirm, donate, give, grant, present, provide, and transfer unto you, whole and entire, all and singular, my claim, estate, interest, power, right, and title, in, over, and to, and advantage of and in, all that orange fruit, botanically known as Citrus sinensis of the genus Citrus of the family Rutaceae, more particularly described and delineated in the schedule to these presents, with all the rights, privileges, and immunities appertaining thereto, in accordance with and to the maximum extent of the law for the time being in force, with all its rind, skin, juice, pulp, fibre, membrane, and pips, together with all the liquid, solid, and gaseous components, elements, and ingredients thereof, and all other appurtenances appertaining thereto, and all right and advantage therein, with full, total, absolute, and complete power and right to bite, cut, eat, kiss, osculate, lick, masticate, chew, munch, suck, inhale, and otherwise consume the same, or give the same away, or sell or dispose of the same, or bequeath the same, with or without its rind, skin, juice, pulp, fibre, membrane, or pips, with some or all of its liquid, solid, or gaseous components, elements, and ingredients, and with some or all of its other appurtenances, as fully and effectually in all respects as I myself could, anything hereinbefore, or hereinafter, or in any other deed or deeds, instrument or instruments whatsoever, to the contrary in any wise notwithstanding, on the date first above mentioned.

3. Mylward v Welden

Judges hate verbosity. They wish they could penalize verbose lawyers. Over 400 years ago, one frustrated judge did just that.

The case was Mylward v Welden.⁹ The plaintiff filed pleadings running into 120 pages. The learned judge was not happy. The learned judge struggled through the volumes of hooey. The judge then assessed that all the pertinent material could have been contained in 16 pages. He asked who wrote this mumbo jumbo. When told that the culprit was the plaintiff’s son Richard Mylward, the learned judge imposed severe sanctions on Richard for his annoying verbosity, which, in the judge’s view, amounted to an abuse of court process. The sanctions included a £10 fine, jail time at Fleet Street prison, and the ignominy of having the offending pleadings hung over his head through a hole made in the paperwork¹⁰ (a legal loophole!), and then being paraded around the courts of Westminster bareheaded and barefaced. He must have been a sorry sight to behold.

Richard Mylward’s sins of legalese and verbosity continue to plague the legal profession to this day. Today there are no penalties for these professional sins. Maybe there should be. Our learned friend Gerry Spence would like to impose some.

Gerry Spence has