ClaritytabulationtabulationtabulationBack to top
I think there is a clear relationship between good, clear writing and good, clear thinking. And if you don’t have one, it’s very hard to have the other.
Justice Samuel Alito in Bryan A. Garner: Interviews with United States Supreme Court Justices in Scribes Journal of Legal Writing, volume 13 (2010)
What seems to the writer, owing to his private information, to bear unquestionably only one sense may present to the reader, with his open mind, a different one.
Fowler's Modern English Usage (2nd edition) under False scent
Brevity, clarity and simplicity are the hallmarks of the skilled pleader.
Sir Robert Megarry, Vice-Chancellor (of the Chancery Division of the High Court of England and Wales) in a Practice Note (1981 1 WLR 1560)
The central attribute of good legal writing is clarity.
J. Michael Eakin, Associate Justice of the Supreme Court of Pennsylvania: The Necessity of Clarity and Brevity in Legal Writing in the Sideboard column of Jurist (29 December 2011)
[The draft Scottish Independence Referendum Bill] is, at first sight, a simple and compelling document, as the noble Lord, Lord Elis-Thomas, said. It is brilliantly drafted, readable by everyone, including primary schoolchildren, and is something that anyone who cares to read it will at once understand. All the bits that one would expect to find are there .…
Lord Hope of Craighead, former Supreme Court Justice: HL Hansard, 24 June 2014: column 1219. The Bill was drafted in the Parliamentary Counsel Office, Edinburgh.
In my own case the words of such an act as the Income Tax, for example, merely dance before my eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception — couched in abstract terms that offer no handle to seize hold of — leave my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time. I know that these monsters are the result of fabulous industry and ingenuity, plugging up this hole and casting out that net, against all possible evasion; yet at times I cannot help recalling a saying of William James about certain passages of Hegel: that they were no doubt written with a passion of rationality; but that one cannot help wondering whether to the reader they have any significance save that the words are strung together with syntactical correctness.
Judge Learned Hand of the US Court of Appeals: Eulogy of Thomas Walter Swan (57 Yale L.J. 167, 169 (1947))
Communicate with the court, by pen and by voice, in terms as simple and as easily understood as the subject matter permits. Each year I tell my clerks a story told of General Stonewall Jackson. Pressed for an explanation why he kept on this staff a not too bright officer, he replied: “When I have written a field order, I have him read it. If he can understand it, anybody can understand it.” Write and talk that way to judges. Some are brilliant, some are bright, some pedestrian. All want to understand, and understanding is the condition precedent to persuasion.
U.S. Circuit Judge John C. Goldbold (1920-2009): Twenty Pages and Twenty Minutes— Effective Advocacy on Appeal in 30 Southwestern Law Journal 801 (1976) Added 9.2.21
—U.S. Circuit Judge John C. Goldbold (1920-2009) in “Twenty Pages and Twenty Minutes— Effective Advocacy on Appeal,” 30 Southwestern Law Journal 801 (1976)ContexttabulationtabulationtabulationBack to top
Words are chameleons, which reflect the color of their environment.
Widely attributed to Judge Learned Hand
Doing it because it's donetabulationtabulationtabulationBack to top
[H]is words, like cavalry horses answering the bugle, group themselves automatically into the familiar dreary pattern. This invasion of one's mind by ready-made phrases ... can only be prevented if one is constantly on guard against them, and every such phrase anaesthetizes a portion of one's brain.
George Orwell: Politics and the English Language (1946)
Habit with him was all the test of truth;
“It must be right: I’ve done it from my youth.”
George Crabbe: The Borough Letter III The Vicar (1810)
If we never do anything which has not been done before, we shall never get anywhere.
Lord Justice Denning: Packer v. Packer (1954)
Every advance in civilization has been denounced as unnatural while it was recent.
Bertrand Russell (1872-1970): An Outline of Intellectual Rubbish
When I read some of the rules for speaking and writing the English language correctly, — as that a sentence must never end with a particle, — and perceive how implicitly even the learned obey it, I think: Any fool can make a rule. And every fool will mind it.
Henry David Thoreau's journal, 3.2.1860writer
De- and Pre- ScriptivismtabulationtabulationtabulationBack to top
[N]o dictionary of a living tongue ever can be perfect, since, while it is hastening to publication, some words are budding, and some falling away….
Samuel Johnson, in the preface to his Dictionary of the English Language (1755)
Men ever had, and ever will have leave,
To coin new words well suited to the age,
Words are like leaves, some wither every year,
And every year a younger race succeeds;
Death is a tribute all things owe to fate.
Horace (65 - 8 BCE): Of the Art of Poetry
Language is mobile and liable to change. It is a free country, and man may call a "vase" a "vawse", a "vahse", a "vaze", or a "vase", as he pleases. And why should he not? We do not all think alike, walk alike, dress alike, write alike, or dine alike; why should not we use our liberty in speech also, so long as the purpose of speech, to be intelligible, and its grace, are not interfered with?
James Murray, lexicographer and editor of the Oxford English Dictionary (1837-1915): Of the Art of Poetry Added 9.2.21
EditingtabulationtabulationtabulationBack to top
I saw the angel in the marble and carved until I set it free.
Michaelangelo (1475-1564): Letter to Benedetto Varchi
Beauty is the purgation of superfluities.
Attributed to Michaelangelo (1475-1564)
When an explanation seems really complicated, it’s usually because there are either extraneous details clogging up your attention or essential logical connections not being made.
Natalie Wolchover, science journalist, 2016 interview
He that uses many words for explaining any subject, doth, like the cuttlefish, hide himself for the most part in his own ink.
Attributed to John Ray (1627-1705)
Trifles go to make perfection. And perfection is no trifle.
Attributed to Michaelangelo (1475-1564)
If only people knew how hard I work to gain my mastery, it wouldn't seem so wonderful at all.
Attributed to Michaelangelo (1475-1564)
[I cut out as too literary] adjectives, adverbs, and every word which is there just to make an effect. Every sentence which is there just for the sentence. You know, you have a beautiful sentence — cut it. Every time I find such a thing in one of my novels it is to be cut.
Georges Simenon, interview in The Paris Review, no.9, summer 1955
When I finish a business letter (these days I type my own), I'll hand it to two or three colleagues — perhaps to the two lawyers who work at Lawprose … and to an intern … — and ask them to proofread it for me. But I don't stop there. I insist that each reader find two suggested improvements before giving it back to me. No-one is allowed to say, "It looks alright to me; I didn't find anything."
Bryan Garner: The Importance of Other Eyes in Garner on Language and Writing (2009)
Whenever I write I have a particular imaginary reader in mind (different imaginary readers oversee and 'filter' the same passage in numerous successive revisions) and at least half my imaginary readers … are female.
Richard Dawkins: The Extended Phenotype (1982)
In accordance with his custom, [Jonathan] Swift read large chunks [of Gulliver's Travels] aloud to his servants, to make sure that every sentence attained his rigorous standard of simplicity.
Michael Foot, in his introduction to the 1967 edition of Gulliver's Travels (1st published in 1726)
Often the accurate answer to a usage question begins, "It depends." And what it depends on most often is where you are, who you are, who your listeners or readers are, and what your purpose in speaking or writing is.
Kenneth G. Wilson: The Columbia Guide to Standard American English (1992)
If life had a second edition, how I would correct the proofs.
John Clare, poet (1793-1864)
Added 13.7.18
Gender-neutral draftingtabulationtabulationtabulationBack to top
Early on [in the Scottish parliament], our Parliamentarians made it clear that they disliked what they perceived as sexism in the use of the masculine 'he' as a singular pronoun. Very soon, gender-specific terms were to be avoided altogether.
The availability of an interpretive rule incorporating the feminine was suddenly of no practical use. So we quickly moved to drafting in gender-neutral style.
We have been so successful in this that we no longer even have such an interpretive rule, as this was deliberately omitted from our interpretation legislation of 2010.
Alex Gordon: Presentation at the Commonwealth Association of Legislative Counsel Conference (April 2015); reported in CALC Newsletter (Nov 2015)
Interpreting and translatingtabulationtabulationtabulationBack to top
I’m Already Bilingual, What Could I Possibly Need to Learn to Interpret in Court?
Let’s just start with basic language. Speaking a second language even on an everyday basis doesn’t mean you are speaking the languages used in legal settings. Yes, I said languages. There are at least five different languages spoken in any given court assignment or setting and you will need to immediately interpret without paraphrasing, omitting, or substituting.
First you have English, the language you hear every day. Then you have the English legalese spoken by the attorneys or Judge when they are speaking to the witness, to each other or to the jury. Also each case has specific subject matter terminology depending on the nature of the lawsuit. Consider these examples: in a criminal case- weapons and ballistics,; in plant explosions- the work performed by plant employees,; in medical malpractice- entire medical procedures. You have to know what those words mean in English plus you must be able to interpret them into your second language.
Now consider the language spoken by the witness. You have to be completely fluent in all tenses. Then you will also hear the regional language, slang, or second language affectations used by the witness.
Diane Teichman, Master court interpreter & interpreter trainer MasterWord Services
[A] recording totally undisputed in the original trial was heard to have different content [amounting to a confession] … 13 years after the original trial. That rehearing, by one person (confirmed by others in the police once they had been primed) … illustrates the dangers of trying too hard to find a meaning in something … which is simply not really hearable.
Bronwen Innes: R v David Bain — a unique case in New Zealand legal and linguistic history in Speech, Language, and the Law Vol 18.1 (2011).
For details of this sad but fascinating case and to hear the disputed recording, go to Dr Helen Fraser's website. See also her and her co-authors' experiment based on the recording, which show not only the power of misleading suggestion but its persistent effect even after it has been discredited: Interpretation of a crisis call: persistence of a primed perception of a disputed utterance in Speech, Language, and the Law Vol 18.2 (2011).
The police detective assigned the role of interpreter in the Montano interrogation flagrantly ignored the guidelines of legal interpreting. At the same time he became an active participant in helping the designated interrogator coerce a confession from the suspect. He in effect became an interrogator. Such shifts in footing have been noted in other sociolegal settings where interpreters are at work….
The case of The People v. Montano demonstrates the dangers of using the police as interpreters during interrogations. The danger is that the police interpreter will not remain in interpreter footing, but will shift back and forth between interpreter and police interrogator. The potential for this to happen is particularly great because, as in other situations involving legal interpreters, the suspect or defendant may assume at the outset that the person who has been assigned to help him or her understand what the interrogator is asking, is actually trying to help him or her in a broader sense and is taking his or her side…. Thus, to play the role of interpreter when one really considers him/herself to be in police detective footing, is one way of subverting the Miranda rights. It is a way of seducing a suspect into talking.
Susan Berk-Seligson: The Miranda Warnings and Linguistic Coercion in Language in the Legal Process edited by Janet Cotterill (2002)
MeaningtabulationtabulationtabulationBack to top
We should not write so that it is possible for the reader to understand us, but so that it is impossible for him to misunderstand us.
Quintilian (Marcus Fabius Quintilianus) De Institutio Oratoria Book VIII, 2, 24 c. 95 CE
Though jurists commonly invoke the rule that statutory terms should be interpreted according to their ordinary meaning, there is no generally accepted view as to what ordinary meaning itself actually means, nor is there a universal justification for appealing to ordinary meaning….
Ordinary meaning has been characterized as “what . . . words would mean in the mouth of a normal speaker of English” or how words “sound in the mind of a skilled, objectively reasonable user of words". These two characterizations are not identical. The skilled user of words and the normal speaker of English are not necessarily the same person.
Stephen C. Mouritsen: The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, Brigham Young University Law Review (2011)
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
Justice Oliver Wendell Holmes: Towne v. Eisner, US Supreme Court (1918)
If parliament doesn't mean what it says it must say so.
An imaginary Lord of Appeal on statutory interpretation, in A.P. Herbert: Bardot MP (1964)
Language is like soil. However rich, it is subject to erosion, and its fertility is constantly threatened by uses that exhaust its vitality. It needs constant reinvigoration if it is not to become arid and sterile.
Elizabeth Drew: Poetry: A Modern Guide to Its Understanding and Enjoyment (1959)
If words continued with their original meanings, doctors would only teach (from Latin docere: to teach), auditors would only hear (Latin audire: to hear), and janitors would only guard the entrances (Latin janus: doorway).
Anu Garg
wordsmith.org (2015)
[T]he Curse of Knowledge: a difficulty in imagining what it is like for someone else not to know something that you know .… Psychologists sometimes call it mindblindness….
The curse of knowledge is the single best explanation of why good people write bad prose. It simply doesn't occur to the writer that her readers don't know what she knows — that they haven't mastered the argot of her guild, can't divine the missing steps that seem too obvious to mention, have no way to visualize a scene that to her is as clear as day. And so the writer doesn't bother to explain the jargon, or spell out the logic, or supply the necessary detail.
Anyone who wants to lift the curse of knowledge must first appreciate what a devilish curse it is. Like a drunk who is too impaired to realize that he is too impaired to drive, we do not notice the curse because the curse prevents us from noticing it….
Cadres of expensive professionals — lawyers, accountants, computer gurus, help-line responders — drain vast sums of money from the economy to clarify poorly drafted text.
Steven Pinker: The Source of Bad Writing, in The Wall Street Journal (25.9.14)
MemorytabulationtabulationtabulationBack to top
The past is never where you think you left it.
Attributed to Katherine Anne Porter, writer and activist (1890-1980)
The Ministry of TruthtabulationtabulationtabulationBack to top
To write in plain, vigorous language one has to think fearlessly, and if one thinks fearlessly one cannot be politically orthodox. It might be otherwise in an 'age of faith', when the prevailing orthodoxy has long been established and is not taken too seriously. In that case it would be possible, or might be possible, for large areas of one's mind to remain unaffected by what one officially believed. Even so, it is worth notincing that prose literature almost disappeared during the only age of faith that Europe has ever enjoyed. Throught the whole of the Middle Ages ... the intellectual leaders of society expressed their most serious thoughts in a dead language which barely altered during a thousand years."
George Orwell: The Prevention of Literature (1946)
The great enemy of clear language is insincerity.
George Orwell: Politics and the English Language (1946)
Edmund Burke observed that bad laws are the worst form of tyranny. But equally, well-intentioned laws that are badly drafted or not readily accessible are also a form of tyranny.
Lord Oliver of Aylmerton: A Judicial View of Modern Legislation in Statute Law Review, vol 14 (1993).
[T]he conquistadors … legalised their invasion by reading out their new rights to the natives in a language they could not understand. No matter. They had heard the phrases, and were now subjects of the Spanish king and beneficiaries of his capacious protection. They were also, if they now rebelled, traitors rather than enemy combatants.
Michael Wood: Living Dead Man; a review of Operation Massacre by Rodolfo Walsh, translated by Daniella Gitlin, in the London Review of Books (7.11.2013)
[T]he Argentinian novelist Ricardo Piglia offers an interesting take on Walsh’s straightforward style: ‘Clarity is a virtue, but not because things need to be simplified in order for people to understand – that’s just the rhetoric of journalism. The virtue lies in confronting a deliberate darkness.’ The darkness, that is, of the language of authorities who control all the lighting.
Michael Wood: Living Dead Man; a review of Operation Massacre by Rodolfo Walsh, translated by Daniella Gitlin, in the London Review of Books (7.11.2013)
It’s a sad truth that our government’s laws and rules are not only mostly written by lawyers, but they seem also to be written primarily for the benefit of other lawyers. This makes compliance with the laws more expensive, because people who have to follow the laws and rules need to hire lawyers to find out what they mean.
Legalese does more than waste time and money. When laws and rules are hard to understand, it’s more likely that people who are trying to comply won’t be able to do so, because they don’t understand what’s being asked of them.
The government gets less of the behavior that it wants; the people trying to be good and do what government wants get frustrated and angry; our economy is less efficient because of all the expense involved; and overall, confidence in government is eroded, because when poorly written laws and rules are enforced, people view them as unfair and arbitrary.
Christopher Cox, chairman, U.S. Securities and Exchange Commission;
Testimony to the US House of Representatives (26 February 2008)
[P]olice officers … do not necessarily have to read the [Miranda] rights from the card. They are permitted to paraphrase them. The danger here, as Cotterill has … shown in her analysis of the 'police caution', the United Kingdom's equivalent of the Miranda warnings, is that there is great variability in the way that different police officers paraphrase the warnings, and that in the process of paraphrasing, the police often make the warnings less comprehensible …. Shuy demonstrates that even when the police read directly from the card, their performance as readers is often so poor that comprehension of the ... warnings is adversely affected.
Susan Berk-Seligson: The Miranda Warnings and Linguistic Coercion in Language in the Legal Process edited by Janet Cotterill (2002)
in part quoting Cotterill: Reading the Rights: A Cautionary Tale of Comprehension and Comprehensibility in Forensic Linguistics (2000) and Roger Shuy: The Language of Confession, Interrogation, and Deception (1998)
Shuy … [explains] that one reason why so many suspects confess to crimes, despite being given the Miranda warnings, is that 'the laws regarding police interrogation permit the police to lie, to flatter, to adduce, to ask questions roughly, to play act, to trick, and to cajole'.
Susan Berk-Seligson: The Miranda Warnings and Linguistic Coercion in Language in the Legal Process edited by Janet Cotterill (2002)
quoting Roger Shuy: The Language of Confession, Interrogation, and Deception (1998)
Although many juvenile offenders read near the sixth-grade level, their linguistic deficits make comprehension of the [Miranda] warnings unlikely even when they are written at an appropriate level. Furthermore, adolescent characteristics associated with developmental immaturity seem to impact Miranda comprehension in ways that create unique challenges for youths attempting to comprehend their rights. These characteristics may interact with language factors, suggesting that a sufficiently low reading and comprehension level of the warnings may be necessary but not sufficient for comprehension.
Naomi E. Sevin Goldstein & others: Potential Impact of Juvenile Suspects' Linguistic Abilities on Miranda Understanding and Appreciation in The Oxford Handbook of Language and Law (2012 [citations omitted])
You are in a small room which is lit rather too brightly by harsh fluorescent lighting panels. A strange smell hovers. It reminds you of something unpleasant but you are not sure quite what. The room is furnished with a metal toilet and a wide, thigh-high bench covered by a thin mattress encased in very thick, very cold, blue plastic. There is a piece of paper beside you covered in tight-set type which you cannot bring yourself to concentrate on. You have a nagging, queasy feeling, however, that you should have read that paper and that you should have read it carefully. You are particularly concerned that the words at the top of the page, the same words which you heard when you were arrested and brought to this police cell, might be some of the most important you'll ever encounter as they might affect the rest of your life. However you just cannot face reading them.
Frances Rock: The Caution in England and Wales in The Oxford Handbook of Language and Law (2012)
In the context of the courtroom, where legal decisions are made based on the evidence presented to the court, the speech styles of witnesses may influence legal decisions. For example, compared to speakers who use elaborate or formal forms and convoluted illogical structures, speakers who use simple, congruent forms and logical structures are considered more committed to what they say. Powerless speech is marked with the use of linguistic markers such as hedges, tag questions, polite forms, and other features that mark vagueness and uncertainty, whereas powerful speech is devoid of these features. Numerous social psychology-based studies, which have investigated the effect that witness testimony styles may have on courtroom participants, have consistently found that speakers with powerful speech style are perceived more favourably in terms of credibility, intelligence, and attractiveness. Accordingly, [interpreters'] reproduction of such stylistic features in original utterances as hesitations, grammatical disfluency, and others that are generally edited out in conference interpreting is considered significant in legal contexts.
[In this study] most interpreters in the naturalistic data often failed to reproduce the style of original utterances of witnesses, such as repetitions, hesitations, inexplicitness, and some non-standard language….
[I]nterpreted renditions as well as translated texts may inevitably contain traits of interpreters' personal styles…. Court interpreters are entrusted with making difficult decisions as to the degree to which they should reproduce the style of original utterances. They need to consider the extent to which they could produce a similar effect … while accommodating the demands and expectations of the court…..
Given that the subjects were instructed to provide a faithful reproduction of the speech styles, the absence of the original speech style in the translated texts may have been due to either difficulties in finding equivalents in the target language, or the lack of equivalents, or the subjects' oversight.
Jieun Lee: Translatability of speech style in court interpreting in Speech, Language, and the Law Vol 18.1 (2011) (citations omitted)
Plain language is starting to become part of the psyche, especially in parliamentary committees and regulatory bodies. Certainly it now appears as almost an obligatory component in reports and recommendations. It has even appeared as a bargaining point in negotiations. In the tussle by banks to be allowed to charge customers annual fees for electonic charge cards, one undertaking extracted from the banks was the agreement to produce consumer documents in plain English.
Dr Robert Eagleson (1931-2013), linguist and Australian Law Commissioner
Clarity 28 (August 1993)
Other languagestabulationtabulationtabulationBack to top
While Chinese characters are often thought of as overly complex, in fact they are all derived from a couple hundred simple pictographs and ideographs in ways that are usually quite logical and easy to remember.
[T]he relationship between Latin and popular languages has always been reciprocal. The Germanic languages strongly influenced Medieval Latin, as much from the standpoint of vocabulary as of style….
Throughout Europe, certain typical features made [this] chancellery style difficult to understand…. [A]uthors in this style wrote extremely long sentences … interrupted by numerous subordinate clauses. According to this ideology of writing, every detail (e.g., conditions, exceptions, etc.) relating to the theme of a … sentence should be included in this sentence itself, to avoid omissions, mistakes, and misunderstandings. Chancellery style is also characterised by use of complicated structures at the beginning of sentences, as well as by use of the passive, legal pronouns (e.g., 'the said') and heavy verbal nouns.
Heikki E.S. Mattila: Comparative Legal Linguistics (2013)
…[T]here is no documented language that has only one word for each concept. Languages, like human cognition, are too nuanced, even messy, to be so elementary. Even unwritten languages have formal registers. What's more, one way to connote formality is with substitute expressions: English has "life" as an ordinary word and "existence" as the fancy one, but in the Native American language Zuni, the fancy way to say life is "a breathing into".
Even in English, native roots do more than we always recognise. We will only ever know so much about the richness of even Old English's vocabulary because the amount of writing that has survived is very limited. It's easy to say that "comprehend" in French gave us a new formal way to say "understand" — but then, in Old English itself, there were words that, when rendered in Modern English, would look something like "forstand", "underget", and "undergrasp". They all appear to mean "understand", but surely they had different connotations, and it is likely that those distinctions involved different degrees of formality.
Nevertheless, the Latinate invasion did leave genuine peculiarities in our language. For instance, it was here that the idea that big words' are more sophisticated got started. In most languages of the world, there is less of a sense that longer words are "higher" or more specific. In Swahili, Tumtazame mbwa atakavyofanya simply means Let’s see what the dog will do. If formal concepts required even longer words, then speaking Swahili would require superhuman feats of breath control. The English notion that "big words" are fancier is due to the fact that French and especially Latin words tend to be longer than Old English ones — "end" versus "conclusion", "walk" versus "ambulate".
John McWhorter, professor of linguistics and American studies at Columbia University, Aeon Essays
Pots and kettlestabulationtabulationtabulationBack to top
FORASMUCH as it now appeared to this Court, by a report made by the now Lord Keeper, (being then Master of the Rolls,) upon consideration had of the plaintiff's replication, according to an order of the 7th of May anno 37th Reginæ, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same replication, and by whose advice it was done, to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby; the execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginæ, suspended, without any express cause shewed thereof in that order, and was never since called upon until the matter came to be heard, on Tuesday last, before the now Lord Keeper; at which time some mention was again made of the same replication; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff's son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard's head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.
Sir John Puckering, Lord Chancellor, in Mylward v. Weldon (1595)
PrecisiontabulationtabulationtabulationBack to top
[T]he very first time it was called into question, in 1854, and/or was given not one but three meanings …, and ever since it has been the repeated and direct cause of uncertainty, litigation, and courtroom failure.
David Mellinkoff: The Language of the Law (1963)
Words strain,
Crack and sometimes break, under the burden,
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still.
T.S. Eliot: Burnt Norton (1935)
There was not truth enough in the world to fill so long an affidavit.
Dorothy L. Sayers: Strong Poison (1930)
A man who uses a great many words to express his meaning is like a bad marksman who, instead of aiming a single stone at an object, takes up a handful and throws at it in hopes he may hit.
Attributed to Samuel Johnson but unfortunately thought to be apocryphal
Language is like a cracked kettle on which we beat out tunes for bears to dance to, while all the time we long to move the stars to pity.
Gustave Flaubert: Madame Bovary (1857)
According to one researcher [Karl Siegfried Bader], jurists beat all other scholars, including theologians, in the art of ornamenting language.
Heikki E.S. Mattila: Comparative Legal Linguistics (2013)
Don't use words too big for the subject. Don't say 'infinitely' when you mean 'very'; otherwise you'll have no word left when you want to talk about something really infinite.
C.S. Lewis: Letters to Children
I remember during my training for admission to the Bar a 'talk' from the Plain Language people, followed by an 'optional' exercise in attempting to draft in that style. What was clear to me was that quite a few of the advocates for Plain Language seemed to care little for, in not actively dislike, a desire for clarity or precision. Readability was all, and readability was defined, it seemed to me, as fewer long words and more full stops, regardless as to whether that served the purpose of the draft.
It has left a poor taste in my mouth, as it were, for their lobbying efforts ever since. I accept Ronan's point that Acts are made to pass, but I cannot see how even that can justify a lack of precision or accuracy.
Martin McEvoy, barrister
Legislative drafting forum (2012)
The disagreement among the justices of the [US] Supreme Court can be attributed to an ambiguity in the statute that none of them admits is present. Although both of the proposed interpretations are possible, each side is wrong in its assertion that the language is clear. Thus, in an interesting voting paradox, the justices agreed 9–0 that the language is plain, but disagreed 5–4 about what it means.
Lawrence M. Solan: The Language of Judges (1993 p.101 (footnote with slight reservation omitted)). The judges were ruling on sections 1962 and 1964 of RICO — the Racketeer Influenced and Corrupt Organizations Act 1970.
Ungoverned ramification of documents will run up time and expense beyond collectability, and can tax the patience of a business client to the breaking point.
In the field of public law, however, … we are regularly treated to phenomena like the Treasury’s proposed 110 single-spaced pages of section 385 regulations.
If the proposed section 385 regulations, or something like them, are adopted, what results can be expected? …
Consider the United States Constitution. The Constitution is openended, generalized and telescopic in character. What has it spawned? Pervasive ambiguity and unending litigation.
Contrast the extreme counter-model of law, the Internal Revenue Code and its festooned vines of regulations. The Code and regulations are particularized, elaborated and microscopic in character. What have they spawned? Pervasive ambiguity and unending litigation.…
The legal system of a democratic society simply cannot operate — and that means that a democratic society cannot operate — if the law is allowed to become so elaborate that it is beyond the reach of the informed, literate citizen who would like to be law abiding.…
I have no doubt that one evidence of public disgust with this situation lies in the sharp increase in nonpayment of taxes by the people of the United States — a portent of the terrible cost, not only in money, but more important, in decline of civic responsibility, and ascendancy of contempt for the law, in the mind of the public at large.…
As professionals, we lawyers ought to be in the forefront of a movement for radical simplification of our legal system and our laws. We should be in the forefront of a movement to repeal unenforceable and unenforced provisions. We should continuously insist that the aggregate of our law be kept within the capacity — the narrowly limited capacity — of our legal institutions to implement the law in a manner that is fair, effective and swift.
Bayless Manning, Dean of Stamford Law School 1964 - 71.
Hyperlexis and the Law of Conservation of Ambiguity: Thoughts on Section 385 in The Tax Lawyer, vol 36, no.1, Fall 1982).
Readers' spintabulationtabulationtabulationBack to top
As readers construct ideas about the message or the messenger, they engage in a dialogue with the words and pictures, bringing their thoughts, feelings, and values into play. Document designers who are sensitive to the dynamic interplay between cognition and affect during interpretation are much more likely to create documents that people will actually read.
Karen A. Schriver
Dynamics in Document Design (1997)
RhetorictabulationtabulationtabulationBack to top
A timid question will always receive a confident answer.
Mr Justice (later Lord) Darling (1849 - 1936)
A fair result can be obtained only by fully stating and balancing the facts and arguments on both sides of each question….
Charles Darwin
Introduction to On the Origin of Species (1859)
Never confuse motion with action.
Benjamin Franklin
Lower your voice and strengthen your argument.
Lebanese proverb
Effective advocacy consists of a skillful blend of clear language and a sense of dramatic structure.
Judge Thomas Penfield Jackson, former United States District Court Judge for the District of Columbia, in a review of Point Made: How to Write Like the Nation's Top Advocates by Ross Guberman, quoted on the OUP website)
Grey replied for the government in support of Haldane's Army Bill, putting the detailed reforms into layman's terms…. The Westminster Gazette reported:
His speech was a godsend to those Members wo had not yet clearly grasped the outlines of Mr Haldane's scheme. Sir Edward employed the simplest language, and thus brought the Government's proposals, stripped of all bewildering phraseology, clearly before the most unmilitary mind in the House. Across the quiet, clear stream of argument there flashed at times a gleam of humour ….
These comments throw light on his speaking abilities and why he was considered such an accomplished parliamentary performer…. [H]e had the intellectual firepower to assimilate a difficult brief but at the same time the ability to put across complex solutions in a clear and concise manner.
Michael Waterhouse: Edwardian Requiem: a Life of Sir Edward Grey (2013). Waterhouse quotes with approval George Trevelyan's view (in Grey of Falloden 1937) that "[b]ut for the Haldane reforms and the much abused Military Conversations which Grey had sanctioned, the {First World] war would have been lost at the outset."
Be brief, be pointed, let your matter stand
Lucid in order, solid and at hand;
Spend not your words on trifles but condense;
Strike with the mass of thought, not drops of sense;
Press to close with vigor, once begun,
And leave, (how hard the task!) leave off, when done.
Associate Justice Joseph Story (1779-1845), U.S. Supreme Court
Advice to a Young Lawyer in The American jurist and law magazine (Vol 5 [1831] p. 298)
In use of Latin expressions and maxims one may also observe a particular function that stands mid-way between the rhetorical function and the function of expressing legal concepts and principles. This involves strengthening the legitimacy of a legal system or implanting a legal principle at the national or international level. As emphasised by Antoine Masson and Pascale Duparc-Portier, many historical examples exist. In France, the old customary law was transformed into learned law by dressing up customary principles in the guise of Latin maxims. Likewise, in England, Latin expressions and maxims have since the Middle Ages lent a veneer of age to the common-law system: use of Latin shows that this involves an old system, legitimated by high-quality legal writing. At the detailed level of legal systems, a legal principle that is still perhaps controversial acquires greater authority if given the form of a Latin maxim: it appears universal and eternal. The same is also true of Latin expressions. Many jurists have used this strategy. For example, Rudolf von Jhering, the great German jurist, deliberately floated the idea of precontractual responsibility by using the expression culpa in contrahendo ('fault in contracting')….
As we have just seen, this strategic rhetoric is also used in the courts of the EU: advocates general can have recourse to Latin formulations in order to persuade the Court of Justice to apply a principle located in the law of an individual Member State, so as thus to make it universal, that is, to elevate a legal principle from national to Union level.
Heikki E.S. Mattila: Comparative Legal Linguistics (2013)
One can write nothing readable unless one constantly struggles to efface one’s own personality. Good prose is like a window pane.
George Orwell: Why I write (1946)
Sophistication and simplicitytabulationtabulationtabulationBack to top
Simplicity is the ultimate sophistication.
Attributed to Leonardo da Vinci (1452-1519)
The ability to simplify means to eliminate the unnecessary so that the necessary may speak.
Hans Hofmann, painter (1880-1966)
You and I come by road or rail, but economists travel on infrastructure.
Widely attributed to Margaret Thatcher
Any intelligent fool can make things bigger, more complex, and more violent. It takes a touch of genius — and a lot of courage — to move in the opposite direction.
Attributed variously to Albert Einstein (1879-1955) and E.F. Schumacher (1911-1977)
If you can’t explain something simply, you don’t understand it well enough.
Attributed variously to Albert Einstein (1879-1955) and Richard Feynman (1918-1988)
Words are like leaves; and where they most abound
Much fruit of sense beneath is rarely found.
It is never my custom to use words lightly. If twenty-seven years in prison have done anything to us, it was to use the silence of solitude to make us understand how precious words are and how real speech is in its impact on the way people live and die.
Nelson Mandela (1918-2013)
Think like a wise man but communicate in the language of the people.
W.B. Yeats, Nobel literature laureate (1865-1939)
Anyone who wishes to become a good writer should endeavour, before he allows himself to be tempted by the more showy qualities, to be direct, simple, brief, vigorous, and lucid.
H.W. Fowler, lexicographer (1858-1933)
A pervasive myth is that lawyers write in turgid 'unplain' prose on purpose, and that they could turn off the faucet if they chose to. But it's actually incredibly difficult to write taut and clear sentences, unless your thinking is crystal clear and your editing skills are impeccable.
Ross Guberman: Quoted in A Tip From The Justices on Writing: Keep it Simple in The National Law Journal (27 March 2015)
A petition for a writ of certiorari should be stated briefly and in plain terms….
R.14.3, Rules of the Supreme Court of the United States
Similar rules apply to other documents filed in the Supreme Court and the lower federal courts.
Particulars of claim must include —
(a) a concise statement of the facts on which the claimant relies; ….
R.16.4 (1), Civil Procedure Rules (England & Wales)
[T]he increasing complexity of the law imposes a greater obligation than ever on judges to make themselves clear.
Lord Neuberger MR: Judicial Studies Board annual lecture (16 March 2011)
It is not realistic to expect that every Judgment could be understood by everyone: human nature, the complexities of modern life, and the intricacies of the law do not permit that. However if we are to maintain public confidence in the justice system, judges must make their Judgments as accessible as possible, particularly to members of the public and litigants-in-person. The steps to increased clarity are not difficult, albeit ingrained habit may take some effort to break. By rendering our Judgements as clear, as accessible, and as comprehensible, as possible we place that which is of value in them in sharper focus: rather than diminishing our Judgments, it would enhance them.
Lord Neuberger, President of the Supreme Court: 1st annual BAILII lecture (20 November 2012)
The motion to exceed the page limit is denied….
A review of the proposed, 29-page[,] motion's commencement confirms that a modicum of informed editorial revision easily reduces the motion to twenty-five pages without a reduction in substance….
[The judge then edits a 177-word extract down to 46 words]
Concentrating on the elimination of redundancy, verbosity, and legalism (see, e.g., Bryan A. Garner, The Elements of Legal Style) …, the plaintiffs may submit a twenty-five-page motion ….
Steven D. Merryday, US District Judge, Florida in Belli v. Hedden Enterprises (7 August 2012)
Words easy to be understood do often hit the mark, when high and learned ones do only pierce the air. He also that speaks to the weakest, may make the learned understand him; when he that striveth to be high, is not only for the most part understood but of a sort, but also many times is neither understood by them nor by himself.
John Bunyan (1628-1688)
The Holy City
The tinier the point of the needle, the more easily it goes through. The thinner the blade of the sword, the more swiftly it cuts through. Often the same goes for words. A short, potent word helps convey an idea in just a few letters.
Anu Garg
Wordsmith.org 28.9.15
Simplicity is the final achievement. After one has played a vast quantity of notes and more notes, it is simplicity that emerges as the crowning reward of art.
Frederic Chopin, pianist and composer (1 Mar 1810-1849)
StyletabulationtabulationtabulationBack to top
The lawyer’s greatest weapon is clarity, and its whetstone is succinctness.
Elijah Barret Prettyman (1891-1971), US Federal judge
One notices, for instance, that long, involved sentences confuse him, and that he is obliged to re-read them to get the sense…. Unconsciously he accustoms himself to writing short sentences as a rule. At times he may indulge himself with a long one, but he will make sure there are no folds in it, no vaguenesses, no parenthetical interruptions of its view as a whole; when he is done with it, it won't be a sea-serpent with half of its arches under the water; it will be a torch-light procession.
Mark Twain, quoted by Victor A. Doyne in Writing Huck Finn: Mark Twain's Creative Process
ThoughttabulationtabulationtabulationBack to top
The most erroneous stories are those we think we know best — and therefore never scrutinize or question.
Stephen Jay Gould: Full House: The Spread of Excellence from Plato to Darwin (1996)
It's almost a little bit meaningless.
BBC radio 4 speaker (17.12.13)
A demonstration in algebra is irrefutable because each term is defined in such a precise manner that the demonstrator can say nothing that is beyond of what the audience understands. Identities in logic are true identities. But the words used in speaking about emotions, about the conduct of government, about the economy, are vague words which may be employed in the same argument with several different meanings.To reason with a poor language is like using a pair of scales with inaccurate weights.
André Maurois: The Art of Living (1939)
MiscellaneoustabulationtabulationtabulationBack to top
The aims of this book are similar to those of the earlier volume, Modern Wills Precedents, namely:
- To provide a comprehensive collection of precedents which produce the full legal effect intended.
- To make legal documents more comprehensible to clients, and thus to assist in relations between solicitors and the public.
- To avoid the abuse of the English language found in many traditional precedents.
- To avoid the confusion of thought and expression found in some traditional precedents.
- To make legal documents shorter, and so to save time and money for the profession and for clients.
Anthony Parker: Modern Conveyancing Precedents (1st edn, 1968)