I recently attended a legal writing seminar taught by Professor Bryan A. Garner, current editor of Black’s Law Dictionary and a respected authority on legal style. Professor Garner teaches that the most effective legal writing is penned in “plain language,” and not the turgid, jargon-laden prose we are accustomed to seeing in many pleadings, briefs, and even legal opinions.
The reasons to write legal prose in plain language seem uncontroversial. Plain language makes your writing easier to read and more accessible; this usually allows the reader to quickly understand what you’re arguing and why your position is correct. But then why does so much legal writing today continue to employ the stilted, inaccessible style of something drafted by quill and ink in the 19th century?
Paradoxically, the answer may lie in one of the very merits of plain language: accessibility. As I prepared to leave for the seminar, a lawyer-friend told me—perhaps jokingly—that he thought writing in “plain language” was no great service to the profession. “If everyone can read, write, and understand legal writing,” he said, “who needs lawyers?”
I believe that this sentiment, however laughable, explains why the legal profession and so many other fields are plagued by impenetrable prose. David Foster Wallace, in an interview with Professor Garner, explained it this way: “[I]n many tight, insular communities—where membership is partly based on intelligence, proficiency, and being able to speak the language of the discipline—pieces of writing become as much or more about presenting one’s own qualifications for inclusion in the group than transmission of meaning.” David Foster Wallace & Bryan A. Garner, Quack This Way 48 (RosePen Books 2013).
Writing legal prose in plain language, then, creates an apparent tension between accessibility and exclusivity. While plain language makes writing more comprehensible and digestible, it also lacks the baroque flourishes that may signify years of elite and esoteric academic study.
But our profession is about getting results, not flexing intellectual or academic muscle. And legal results require the clear expression of cogent ideas. I therefore believe that a lawyer is better able to prove his or her rightful membership in the group through clear, accessible communication than through exclusive, obfuscatory prose. Wallace believed that professionals and academics fear that “unless they can mimic the particular jargon and style of their peers, they won’t be taken seriously, and their ideas won’t be taken seriously.” Id. at 48-49. As a new generation of lawyers matriculates in this age of the internet—where a piece of writing may be disseminated to thousands of readers at the click of a mouse—attorneys who can rise above the antiquated jargon of the profession and clearly communicate cogent ideas to a large and diverse audience will be not only members of the group, but also its leaders.