Confessions of a legal-writing teacher, part 8
Confessions of a legal-writing instructor, part 8 of a series.
8. I’m obsessed with hyper-formality and plain language.
And I’m not sure why.
To explain: I have an irrational, exaggerated, negative reaction to hyper-formal language. Even when the formality is justified or harmless, I react negatively. So, for example, the following overheard exchange caused me to over-react:
I also have an irrational obsession with plain writing--not that I always write plainly. I just think we all should, all the time. Some have pointed out to me that plain writing isn't always possible or even desirable. I know. I said I was irrational, didn't I?
One of my students pointed out that my obsession with plain writing is a form of reductionism--the idea that anything can be broken down into its parts. For me, a complex piece of writing can be broken down into its concepts, and those concepts can be expressed in their simplest terms.
But apparently not everything can be reduced. My student pointed out the concept of emergentism: some things are more than the sum of their parts. Thus the plain-language process--the reductionist process--may cause a loss of content: content that emerges only from the original, unreduced, unplain text.
Granted.
Yet I have a hard time turning off my obsession with plain writing, and I do still see a lot of reducible legal writing.
Next: If you want to teach legal writing.
____________
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
| Better Legal Writing
| Writing for the Legal Audience
| The Legal Memo: A Basic Guide
8. I’m obsessed with hyper-formality and plain language.
And I’m not sure why.
To explain: I have an irrational, exaggerated, negative reaction to hyper-formal language. Even when the formality is justified or harmless, I react negatively. So, for example, the following overheard exchange caused me to over-react:
For the meeting, do you require assistance in providing enhanced capacity?I laughed out loud and felt bad about it later. Perhaps my negative reactions reflect my own insecurity.
I don't know about that, but we do need you to set up more chairs.
I also have an irrational obsession with plain writing--not that I always write plainly. I just think we all should, all the time. Some have pointed out to me that plain writing isn't always possible or even desirable. I know. I said I was irrational, didn't I?
One of my students pointed out that my obsession with plain writing is a form of reductionism--the idea that anything can be broken down into its parts. For me, a complex piece of writing can be broken down into its concepts, and those concepts can be expressed in their simplest terms.
But apparently not everything can be reduced. My student pointed out the concept of emergentism: some things are more than the sum of their parts. Thus the plain-language process--the reductionist process--may cause a loss of content: content that emerges only from the original, unreduced, unplain text.
Granted.
Yet I have a hard time turning off my obsession with plain writing, and I do still see a lot of reducible legal writing.
Next: If you want to teach legal writing.
____________
Wayne Schiess
Director of Legal Writing | The University of Texas School of Law | Website | Seminars | Articles | Books: Preparing Legal Documents Nonlawyers Can Read and Understand
| Better Legal Writing
| Writing for the Legal Audience
| The Legal Memo: A Basic Guide
On a gut level, I disagree with the idea that there is writing that plain-language processes can't reduce, at least in the context of legal writing.
Emergentism may be a useful concept in explaining or creating tone poems or an artistic work like James Joyce's Ulysses. But I can't imagine what ideas a legal writer might try to convey using purposefully un-plain writing that plain writing couldn't also convey in a way that is accessible to more readers.
Did your student provide any examples?
Wayne says:
One example is terms of art. But of course, plain-language advocates accept that there are irreducible terms of art that are useful in the law.
Another example is based on the reality that no two words mean EXACTLY the same thing, so when you change "assist" to "help" you are changing something, even if almost insignificantly.
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Some of Justice Cordozo's opinions are good examples of emergence.
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Wayne:
Not having read your student's writing, I really doubt that there was anything in his or her unplain text that would not have emerged from re-written plain text. Unless he's writing a haiku:
Nothing emerges
from legalistic writing
that beats plain English.
Chris
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I share Wayne's obsession for plain language, not just in legal writing but in speech. For example, deposition questions and cross-examination questions are often unintelligible and waste tremendous amounts of time for witnesses, judges, juries and attorneys.
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The concept of emergentism has its merits. But I cannot think of a situation in legal writing where it would be necessary to seize upon that delta between the words and the sum of their parts.
I have noticed that the model of elegance is slightly different in legal writing than it is in mathematics. In mathematics, an elegant proof consists only of absolutely essential steps each expressed as succinctly as possible. Yet it is impossible to misunderstand, where most bad proofs are merely possible to understand and usually that possibility is quite bleak.
In legal writing, there does not seem to be as great a value placed on omitting non-essential steps in reasoning. There is a great deal of reiteration. I have also noticed that wordiness intended to disambiguate tends to spawn new meta-ambiguities. I think a lot of these ambiguities could be averted with the use of metasyntactic variables, but that admittedly would make legal writing much less aesthetically pleasing.
However, what both mathematical writing and legal writing share in terms of what's valued is plain language and brevity. I cannot endorse that enough.
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