Name: ___________________________

Brevity

“Some legal writing texts start out by explaining how legal writing is different
from other writing. But it should not be. While certain documents—complaints,
briefs, deeds—may have a standard form, their content should be in plain English.”
Judge Mark P. Painter, Legal Writing 201: 30 Suggestions to Improve Readability,
http://www.1215.org/lawnotes/misc/how-to-write-for-judges.pdf.1

Generally, law is full of bad writing. From law review articles to motions, lawyers and
academics tend to rely on formalism over substance. Rather than cut out excess words, lawyers
and law students need several words to express a simple idea. For example:

 “Finally, since, under the Equal Employment Opportunity Commission

Guidelines pertaining to sexual harassment, an employer is liable for hostile
environment sexual harassment only if it knew or should have known of the
harassment and failed to take prompt and effective steps to end the harassment, it
is possible for employers to be exonerated from liability for hostile environment
sexual harassment when sexual harassment has occurred by individuals within an
organization, but the organization took prompt action to end further harassment.”
o Elizabeth R. Koller Whittenbury, Individual Liability for Sexual
Harassment Under Federal Law, 14 Lab. Law 357, 370 (1998).

Be honest—would you actually read all of that? I know that I wouldn’t. And Bryan Garner,
author of Legal Writing in Plain English, agrees. Here is his version of the monstrosity above:

 EEOC Guidelines allow courts to exonerate an employer from liability for hostile-
environment sexual harassment if the employer acts promptly to prevent further
harassment.

We think that we need complex, archaic phrases in the law. Hence, we rely on legalese to prop
up a weak argument.

Both Bryan Garner and Eugene Volokh criticize needless verbosity and poor word choice.

 “At first it may feel more impressive to make your note long, to use terminology
you found in the literature, and to speak in abstractions. But it’s more impressive
to understand your subject so well that you can explain it simply—in clear
English—and in concrete words that a normal person would use and understand.
Abstraction usually is a sign of uncertainty. The author would rather feel like part
1
My citations are not in the right format. If you’d like to correct them, feel free. -BJS
 of an in-crowd than engage readers who aren’t part of it, or the author worries that
the underlying idea is weak and will be revealed as such if seen naked. This isn’t
an appeal for plain and dull writing. It’s an appeal for writing that is attractive
because the words are well-chosen, put into perfect order and never wasted. Think
like an architect at the beginning but like a sculptor at the end.”
o Bryan Garner, Redbook, p. 560.

o “Write like normal people speak, not like lawyers or bureaucrats tend to write.
Don’t write ‘Opposition to the bill is needed on the grounds that the means will
produce little or no desirable ends.’ Saying ‘We should oppose the bill because it
won’t [fill in the goal, e.g., reduce violence,’ ‘Legislators should oppose the bill
because it won’t reduce violence,’ ‘The proposal won’t reduce violence,’ or even
‘The propositional won’t do what it’s supposed to do’ would make the same point
in plain English]. Likewise, replace ‘Guns have a far greater utilitarian value
than . . .’ with ‘Guns are far more useful than ….’ Instead of ‘could negatively
affect the accessibility of handguns,’ write ‘could make handguns less accessible.’
Replace ‘made through this form of behavior’ with ‘made this way.’”
 Eugene Volokh, Academic Legal Writing, p. 123, 4th Ed.

Both authors express one important point—brevity. In legal writing and scholarship, our goal is
to convince a reader that our argument or claim is right. That requires precise, simple language
that anyone can understand.

Who is to blame for brevity’s absence in the law? There are a few main culprits. Be watchful for
the word “of.” It rears its ugly head to lengthen an otherwise short, effective sentence. For
example, why say “an adequate number of people” when you could say “enough people?” Either
cut out “of” or replace it with a possessive. Here’s an example. Instead of stating that “profit-
sharing was a means by which the employees were given a lump-sum reward for the success of
the company,” declare that “profit-sharing gave the employees a lump-sum reward for the
company’s success.”

 Quick writing tips for brevity:

o Try to limit yourself to 20-23 words at maximum per sentence. Some experts, like
Judge Mark Painter, limit sentences to 18 words—a fair benchmark. If you can’t
limit yourself, consider breaking the phrase up into two sentences.
o When considering word choice, stick to monosyllable words. Words with two
syllables are fine, but words with multiple syllables are not always necessary.
o Keep the subject, the verb and the object together towards the beginning of the
sentence. This will tend to keep your sentences shorter and more active.
o Simplify wordy phrases. “Of” is the worst offender.
Exercises

Here are some exercises from Bryan Garner’s book Legal Writing in Plain English that I highly
recommend. Revise the following sentences and make them as lean as you possibly can without
changing their meaning. Use the tips I have provided above. Complete them and turn them in by
10/5/20.

1. The County sent an inspector who made observations as to the condition of the
sidewalk and concluded that it was uneven.

a. Proposed revision: The Couty sent an inspector who observed the condition of
the sidewalk and concluded it was uneven.

2. Even assuming that the fog caused the accident in which Cetera was involved,
Pardone had no duty to prevent that injury because it was idiosyncratic, and Pardone
could not have been expected to foresee such injury.

a. Proposed revision: Even if the fog caused Cetera’s accident, Pardone had no
duty to prevent this unforeseeable, unique injury.

3. The court appeared to premise much of its opinion upon the argument that consumers
stand at a significant disadvantage in product-liability actions based on ordinary
negligence principles. Consequently, strict product liability was intended to relieve
the plaintiff of the burden of having to prove actual negligence.

a. Proposed revision: The court based much of its opinion on the notion that
negligence principles prejudice consumers in product-liability actions. Strict
Product Liability was supposed to lessen the plaintiff’s burden of proving
negligence.

4. There is caselaw for the proposition that use restrictions are not always strictly
enforced when a lease is assigned by a tenant in bankruptcy and the property in
question is not part of a shopping center.

a. Proposed revision: Caselaw suggests use restrictions are not strictly enforced
when a tenant assigns a lease and the property is not part of a shopping center.

5. Henry II had a genius of a high order, which never manifested itself more clearly than
in his appreciate of the inevitability of the divergence of the paths of crime and of
tort, and in his conception of crimes as offenses against the whole community.

a. Proposed revision: Henry II’s prediction that criminal and tort law will
diverge and his belief that crimes are offenses against society shows his
intelligence.
6. In addition to the two cases cited just above, both (as mentioned) dealing with the
California State Bar Rules of Conduct, Rule 3-310 of the California State Bar Rules
of Professional Conduct describes circumstances in which an attorney is embroiled in
the representation of adverse interests. Rule 3-310 is concerned primarily with
situations in which the attorney’s duty of loyalty and duty of confidentiality to clients
are called into question. Therefore, to date, there are no Rule 3-310 cases
disqualifying a district attorney as a result of a prosecution of an individual whom the
district attorney used or is used as a witness in another prosecution. Most cases that
involve district-attorney conflicts under Rule 3-310 consist of a former attorney-client
relationship between an accused and a district attorney. In such cases, the rule serves
to protect an accused from a prosecution in which a district attorney unfairly benefits
from information gained during the course of his or her representation of the accused.
Other Rule 3-310 cases involve overzealous prosecutions in cases where a district
attorney is for one reason or another personally or emotionally interested in the
prosecution of the accused.

a. Proposed revision: Rule 3-310 of the California State Bar Rules of

Professional Conduct describes attorneys conflicted by the representation of
adverse interests. Rule 3-310 mainly addresses situations where the attorney’s
duties of loyalty and confidentiality to clients are challenged. There are no
Rule 3-310 cases disqualifying a district attorney who prosecuted an
individual the district attorney used as a witness elsewhere. Most Rule 3-310
cases involving district attorneys involve a former attorney-client relationships
between an accused and a district attorney. Here, the rule protects an accused
from prosecutions where district attorneys unfairly benefit from information
gained during past representations of the accused. Other cases address cases
where a district attorney is personally interested in the prosecution of the
accused.