Tuesday, March 26, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (01): Introduction

Law professors, bar examiners, and judges have been complaining of the poor grammar and woeful quality of writing among students and practitioners. If you are involved in legal writing in whatever capacity, I hope that this series will help improve the way you write. (Please read “A Message to Law Students: Effective Writing Takes a Lifelong Commitment” and “Seeking the Highest Level of Writing Competence” by Bryan A. Garner, editor-in-chief of Black’s Law Dictionary)

1. What is good legal writing? Is legal writing different from or superior to ordinary writing in English?

UCLA School of Law Prof. David Mellinkoff launched the Plain English revolution in legal writing when he published in 1963 his monumental work “The Language of the Law.” In his 1982 book “Legal Writing: Sense and Nonsense,” Mellinkoff said:

If it’s bad writing by the standards of ordinary English, it is bad legal writing. If it’s good legal writing by the standards of ordinary English, it is more likely to be good legal writing.

Richard C. Wydick is Professor Emeritus of Law at the University of California at Davis School of Law. He has also lectured at the International Legislative Drafting Institute presented in New Orleans by the Public Law Center, a joint venture of Tulane and Loyola law schools. In his book “Plain English for Lawyers,” Wydick says:
Good legal writing should not differ, without good reason, from ordinary well-written English.... In short, good legal writing is plain English.

(The National University of Singapore uses Wydick’s book as the main reference for its Legal Writing Programme.)

2. “Why lawyers can't write” by Bryan A. Garner, ABA Journal, March 2013 issue‎

Garner is editor-in-chief of Black’s Law Dictionary since 1977, and Distinguished Research Professor of Law at Southern Methodist University Law School. He is the president of LawProse Inc. through which he has trained thousands of American lawyers on modern legal drafting. He is the author of “Dictionary of Legal Usage”; “Modern American Usage”; and “Making Your Case: The Art of Persuading Judges” (with Justice Antonin Scalia).

In his ABA Journal article, Garner says that “lawyers on the whole don’t write well and have no clue that they don’t write well.” He explains:
The legal profession suffers from a pervasive Dunning-Kruger problem. This is puzzling but true. While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. But there’s plenty of blame that falls elsewhere. Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.) For law firm associates, their senior lawyers too often decry any emphasis on writing style (“I’m just concerned with the substance of it! I leave style to others!”). And in general society, serious readers are becoming an endangered species.

3. “Legal Writing Is Not What It Should Be” by Wayne Schiess, Senior lecturer, The University of Texas School of Law

Schiess says: “Most legal writing is average or below average – mediocre at best. Every lawyer has no doubt read lots of legal writing: judicial opinions, correspondence, statutes, agreements, memos, court documents, and more. I believe most lawyers would agree with me that most legal writing is mediocre at best.”

Schiess offers nine reasons why legal writing is not what it should be. Of these nine reasons, the following, I think, are the most compelling:
3. Law schools do not adequately train students in legal drafting.

4. Lawyers imbibe lots of poor writing from judicial opinions and other required reading.

8. Some lawyers have a misguided sense of professionalism, leading to a formal writing style that ignores audience needs.

9. Many lawyers are complacent, believing their writing is above average or better.

4. Resources by Judge Gerald Lebovits, adjunct professor at Columbia, Fordham, New York University law schools:

Free seminars:

English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

“Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

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1. I graduated with an AB English degree from the Philippine Christian University in 1979 and took my Education units from Philippine Normal College. I have been teaching English grammar and Composition, Literature, Argumentation and Debate since 1981. I created my website “Better English for everyone” in 2007, and it has been visited by over a million visitors from 150 countries since then. (It’s currently offline.) I am also a photographer; you might like my pictures of the 2006 bar operations in DLSU.

2. Since April 2011, I have been advocating the use of Plain Language/Plain English in public communications of government offices and private companies. I am a member of the Linkedin group “Plain Language Advocates.”  

3. The eagle-eyed among you may have noticed that in this article I always used a comma before the conjunction “and.” As Filipinos, we learned in school not to use a comma before the “and” in a list. I followed this rule until 2011 and then I started using what is called the “serial comma” or the “Oxford comma.” Among my reasons for using the Oxford comma are (a) Peterson vs. Midwest Security Insurance Company, Supreme Court of Wisconsin, 2001; and (b) Bryan A. Garner’s “Guidelines for Drafting and Editing Court Rules.” As Judge Mark Painter says: “Using the serial comma never creates ambiguity; leaving it out sometimes does.”

4. This blog focuses on family law and legal procedures. For my articles on freedom of religion, separation of church and State, etc. please surf to:
Are church clerks, ACE teachers, drivers, janitors, etc. considered “employees” under the Labor Code of the Philippines? (Landmark 2012 US Supreme Court ruling in “Hosanna-Tabor Lutheran vs. Equal Employment Opportunity Commission” and its implications for Philippine churches)

Estrada vs. Escritor case: Did the Supreme Court legitimize live-in relationships in the name of freedom of religion?

Secular courts do not have jurisdiction over expulsion or excommunication of church members (Philippine Supreme Court decision in Taruc et al vs. Bishop de la Cruz et al, 2005)

Instances when secular courts can intervene in church disputes (Supreme Court ruling in Fonacier vs. Court of Appeals and Isabelo De los Reyes, Jr., 1955)

Due process must be observed in terminating church membership Doctrine of Church Autonomy: secular courts and church disputes

Caution for pastors in solemnizing an “ecclesiastical marriage” or “marriage in the eyes of God and the church

Life after life: medical criteria of “death,” its legal definition in the Philippines, related issues and Biblical perspectives

Registering a local Baptist church with the SEC as a religious society or aggregate; what is a corporation sole?

Separation of church and State: Should Baptists be involved in politics, civil disobedience, the debate on reproductive health bill, etc?

Should Bible schools apply for recognition from the CHED? (2005 Texas Supreme Court ruling in “Tyndale Theological Seminary vs. Texas Higher Education Coordinating Board” and its implications for Bible schools in the Philippines)