Legal grammarian/SNOOT pundit Bryan Garner has said is that, “While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words.” I am not so sure Mr. Garner is right about that.
Lawyers and judges are not writing to give pleasure to their readers. They are rarely writing for lay-people. They are trying to influence legal decision-makers and/or trying to explain legal decisions. They are almost always writing for very limited and specialized audiences. Sure, lawyers’ writing may often be dry, technical, verbose, prolix, tedious, lengthy, protracted, long-winded, repetitive, rambling, discursive, draw-out, almost interminable, and, finally, repetitive. And, therefore, sure, worthy of criticism on occasion.
But, at the end of the day, in most cases, the writing skills of the opposing attorneys do not determine who wins. In most cases, the party that should win is the one who wins. To suggest otherwise is to condemn our justice system at its core.
To reduce what judges and lawyers do to their writing talent (or lack thereof) trivializes the other far more important skills that they must have (most importantly, analytical skills and judgment).
Too many lawyers (and Mr. Garner, in my opinion) overvalue the importance of “word-wielding.” Bryan Garner doles out particular criticism for “transactional lawyers” as opposed to “trial lawyers.” He takes them to task for using terms like “herein,” “provided, further,” “such in place of this, that, these, those or the.” I think Garner and others who lampoon legalese lose the forest for the trees. Certainly these terms are archaic. Certainly these terms make legal documents clunky and hard to read. But, at the end of the day, what is truly critical for clients is not a work of literary quality or fluid readability. (Plus, writing well takes time, which means money, and maybe clients would prefer adequate for $100 rather than exquisite for $10,000?)
Whether the document being drafted is for the transfer of a business, the resolution of a business dispute, or an extremely complicated multi-party agreement to set expectations and obligations in a long and complex undertaking, perhaps the best and most beautiful writing is not pleasant to read but, rather, fulfills the purposes for which it was drafted without objection or confusion among any people with any interests at stake.