Legal Writing In Plain English by Bryan A. Garner has come to be one of the “go-to” books on legal writing.
Legal writing is not always clear, concise, or well-written. . . shocking, right?!? Ranging from important opinions to those not-so-fun “Terms and Conditions” documents (we all have to click “I agree” to) and everything in-between, legal writing has found a way to leave the English language and become this monster called legalese. Check this out:
The Fifth Circuit agreed with the Tenth Circuit’s construction of 18 U.S.C. § 3592(c)(8), stating that the pecuniary gain aggravator “is only applicable where the jury finds beyond a reasonable doubt that the murder itself was committed as consideration for, or in the expectation of pecuniary gain.” United States v. Bernard, 299 F.3d 467, 483 (5th Cir. 2002) (internal quotations omitted). In drawing such a conclusion, the Court not only cited Chanthadara, but also Woratzeck v. Stewart which explained that “[e]ven if it is true that under many circumstances a person who kills in the course of a robbery is motivated to do so for pecuniary reasons, that is not necessarily so.” 97 F.3d 329, 334 (9th Cir. 1996).
The above paragraph is mine. It was written as a part of a memo on the application of the pecuniary gain aggravator—18 U.S.C. § 3592(c)(8)—in cases where murder occurred in the context of a robbery. Fun stuff, right? The topic is actually super interesting, but that’s a post for another day.
The style, format, etc. of the above paragraph clearly classifies it as legalese. It’s simply not good writing. Consider this: why interrupt a sentence (a train of thought) with case citations, which are sometimes two or three lines themselves? Why not just use footnotes?
In Legal Writing In Plain English, Garner challenges us to be better writers; to get out of the box that is legalese and focus on producing good writing. And his book leads by example. With 50 well-crafted sections (and accompanying practical exercises), Garner offers valuable insights into the legal writing process: how to organize ideas, create and refine prose, and improve editing skills, to name a few. It’s a book that belongs on every lawyer’s shelf (and, yes, Judges too 😉 ).