In the last issue of the Journal, the Legal Writer covered Irving Younger's insights on the mechanics of legal writing. This column examines his insights on legal-writing style.
No More Ugly Legal Prose
In legal writing, language is your medium to express ideas.1 No matter your objective, a good command of language is necessary to communicate effectively. For Professor Younger, mastery of language went hand in hand with clarity of thought.2 He gave the following advice to encourage clear thinking and hence clear writing:
• Before beginning any piece of legal writing, ask this: "What do I wish to say?"3 This question ensures that clarity and concision will guide the language you choose.
• Rewrite.4 Your first draft isn't your final draft. Continue looking for ways to improve your vocabulary and syntax until you achieve clarity.
Bad Writing = Bad Thinking
Bad writing comes from bad thinking. One sees bad thinking from bad writing, Professor Younger flagged three "verbal cues"5 that show when a lawyer isn't thinking clearly:
• Asides.6 You might feel an urge to qualify your sentence with a statement like "It is obvious that. . . ." Instead, make your point obvious by explaining why it's so. This will remove the need for empty statements.
• Babble.7 Professor Younger defined "babble" as the "specialized lingo of a trade or profession other than the law."8 Words in the context of a profession don't serve the same purpose outside that profession. Banish babble. Think of substitute terms.
• Quasi-malapropisms.9 Professor Younger described them as "a ridiculous confusion of words similar in sound but different in meaning."10 Consider the difference between an "uninterested" and a "disinterested" witness.11 The former isn't interested in the proceedings. The latter is impartial about the proceedings.
The Right Word
Don't use words interchangeably.12 Two words may share the same meaning, but their sound and placement will affect the flow of your prose. Professor Younger offered two rules when choosing between words:
• Prefer the Anglo-Saxon word to the Latin word.13 The Anglo-Saxon word is usually the "short rather than long, plain rather than ornate, simple rather than complex."14 For example, use "do" instead of "perform."15 Reserve Latin for when you don't have an English equivalent.
• Avoid old expressions that pair words together - like "agree and covenant" or "understood and agreed." Two words are redundant; one will do.
Vogue Words Are Choking Our Prose
Use standard vocabulary instead of new words or phrases. Standard language is commonly accepted and easily understood. Professor Younger identified five types of "vogue words"16 to avoid:
• Words that show emotion, not meaning.17 Professor Younger explained that "antiwar" means that a person dislikes war.18 But people both peaceful and violent might say they're "antiwar." Avoid words that express a feeling; and use words to express your meaning instead.
• Words that disguise meaning.19 Say what you mean, even if your reader might resist. Masking your meaning behind flowery prose won't help you. The bolder you are, the more persuasive you'll be.
• Words with a new meaning.20 As language changes over time, words take on new meanings. As Professor Younger pointed out more than 30 years ago, "gay" has multiple meanings that'll create confusion with its original meaning.21
• Words that boost your image.22 Professor Younger felt it was "poor style" and "morally repulsive" for people to express their own sensitivity through word choice.23 Disliking euphemisms, he preferred "poor" to "underprivileged" and "old" to "senior citizen."24
• Words on everyone's tongue.25 Question the use of words suddenly adopted by the general public. Check a dictionary if you have any doubt about a word's use or meaning. Professor Younger referred to a statement "outlining the parameters of the judicial function." That statement likely means outlining the "limits of the judicial function."26 A quick look in a dictionary will tell you that the writer mistook "parameter" for "perimeter."27
Rhythm: Prose in Motion
Good prose requires movement through rhythm.28 Language is a form of music. Poetry is an example of lyrical writing. Legal writing can also have rhythm. Because Professor Younger associated rhythm so closely with writing style,29 he didn't offer strict rules to improve your phrasing. Instead, he advised honing your ear in two ways for rhythmic writing:
• Write carefully.30 Rephrase, move, and re-sort your sentences into writing that demands a reader's attention. Apply Professor Younger's rules set out in Part I of this series.
• Read.31 Pay attention to how writing rhythmically increases the persuasive force of writing. Professor Younger suggested reviewing the works of Jonathan Swift, William Hazlitt, and Walter Bagehot.32
The Lesson of the Bungler
Don't be a bad writer. But read bad writing to see what you should avoid. Professor Younger examined a piece of bad writing to share four tips to improve your writing:
• Be succinct.33 Brief and plain language is better than long and fancy language.
• Go easy on metaphors until you know what to do with them.34 Metaphors consist of analogies between two ideas. Professor Younger quoted from Shakespeare an example of a powerful metaphor: "All the world's a stage, and all the men and women merely players." He then quoted from an unnamed jurist: "Each of the foregoing items proves itself to be nothing more than a constituent part of a composite house of cards."35 Omit altogether metaphors improperly used.
• Use words suited to the occasion.36 Simple language is suitable for everyday use. You might use grand expressions now and then, for important events or the occasional celebration.
• Anchor language to your ideas.37 Consider the following: "[T]he case law does not tune in with such a farfetched doctrine."38 Can you see the incomplete idea behind the statement? One can't know what the writer means by "tune in."
The Big Blow-Up
Superlatives express exaggerated admiration of a person or thing.39 Superlatives come in the form of an adjective or adverb - like "superb," "incredible," or "masterpiece."40 Superlatives add little meaning to a statement. There's little difference but exaggeration between "good legal writing is difficult" and "good legal writing is incredibly difficult." Professor Younger recommended five steps to control exaggerated language:
• Not everything must be assigned some kind of value.41 The strongest analysis is based on merit, not verbal inflation.
• Avoid exaggerated enthusiasm.42 Words like "great" or "wonderful" should be reserved for occasions that are truly so.
• Express your gratification in measured terms.43 Often, one adjective or adverb, at most, will make your point.
• Practice understatement.44 Understatement is more effective than overstatement.
• Don't express approval of a judge's opinion to that judge directly.45 Reliance on the citation alone is sufficient to show approval.
Art of Learned Hand
Reading good and bad writing examples identifies the best features of strong legal writing.46 After comparing a 1940 Judge Learned Hand opinion47 to a 1940 Third Circuit opinion,48 Professor Younger identified four virtues of Judge Hand's persuasive writing:
• Directness.49 State your facts simply. Explain events chronologically, if you can. Try using one sentence each to explain the issue and the relief sought.
• Clarity.50 A reader should exert little effort to follow your writing. Use topic sentences and a brief roadmap to prepare a reader for the analysis that'll follow
• Simplicity of vocabulary.51 Your writing will lose its power if a reader guesses your meaning.
• Modesty.52 Be honest and reserved in your writing. Professor Younger explained it best: "[P]ersuasive legal writing should be like a triple-dry martini - colorless but powerful."53
Professor Younger's insights will benefit legal writers in every context. Not all his views have stood the test of time. He wasn't an advocate of gender-neutral writing, for example.54 But Professor Younger's thoughts on legal writing reflect a genius we shall emulate.
The Legal Writer will continue with its series on what we can learn from the great writing teachers - lawyers and non-lawyers.