A Legal Rule That Makes Writing Worsemoving past the fantasy of consistency
You’ve hired a lawyer to write a contract for you. You can slip one section into their draft at the start, to try and nudge them toward writing plainer and clearer. What do you put it in?
Trade places with me now. You’re the lawyer. You want to encourage more people who aren’t lawyer to do their own legal drafting and get away with it. Perhaps you could publish some boilerplate they could copy into their homebrew terms, to help them work more reliably with judges. What do you put in there about writing style?
The common crux is legalese, our collective shorthand for all the ways legal writing differs from regular writing for the worse. A big letdown in learning legal drafting is learning how little legalese the law itself requires.
Competently drafted legal terms grate even literate people who willingly read for fun, mostly because lawyers keep choosing to write badly. They grate judges, too, who fill their their bar journal articles, books, and even legal opinions with threats and pleas for better prose. Some legal subjects are complex, but writing on complex topics can itself be easy or hard to read, in the first place. Too often, lawyers just make it hard.
This being law—and life—there are, of course, exceptions. Some legal principles do encourage legal writing to be bad writing. To reduce legalese among lawyers, or to secure better handling of terms written without them, we have to get specific about those standards.
I’m tackling one, my prime culprit, today: the rule to read legal writing consistently.
Consistency
Reading legal terms consistently means two things in practice:
-
Read repeated words and phrases the same.
-
Read different words used together distinctly.
If “property” clearly includes intellectual property in a section granting licenses, read “property” to include intellectual property in the warranties section, too. If “publish” and “distribute” both appear in one long list, read “publish” to mean something more or different from “distribute” there.
Reading Law: The Interpretation of Legal Texts, a systematic if controversial guide to interpreting legal language by Bryan Garner and the late Antonin Scalia, calls these principles the “Presumption of Consistent Usage”. Their book tries to list all the “canons” and other rules of legal interpretation, so they include it. But they frankly admit that it’s flawed and unrealistic. The rule often misfires across different contexts. It clearly doesn’t apply across the law as a whole. And it flouts the general point of prose style: that smooth, varied description makes writing clearer and easier to read.
Still, the advice we see to drafters, in Reading Law, Making Your Case: The Art of Persuading Judges by the same authors, A Manual of Style for Contract Drafting by Ken Adams, and other manuals for lawyers is basically to suck it up, try your best, and accept humility when you fail. Garner and Scalia are direct about the trade-off in Making Your Case:
the same word should be used to refer to a particular key concept, ==even if elegance of style would avoid such repetition in favor of various synonyms==
As in Reading Law:
[M]ore than most other canons, this one assumes a perfection of drafting that, as an empirical matter, is not often achieved. Though one might wish it were otherwise, drafters more than rarely use the same word to denote difference concepts, and often (out of a misplaced pursuit of stylistic elegance) use different words to denote the same concept.
The rule is a gem. We are unworthy.
I don’t see any tragedy here. I see folly. If even attentive and talented lawyers—the Major Leaguers Scalia tended to read as Supreme Court justice, for example—reliably fail to live up to the rule, and even when they do, they’re writing’s less good for it, then the rule is not in the service of man. It’s another bad choice we lawyers keep making.
For lawyers’ sake, for DIY-ers’, and even for judges’, what can we do?
Format
We could try to jar readers less, imposing less brain pain, by adjusting their reader expectations downward. Put each sentence on its own line, semantic line break style, or write bullet points, or stick each sentence in its own numbered section.
Drawing sentences as discrete blocks on the page, separated by white space, cues on sight that the language comes in chunks readers will need to bite off and chew one by one. It also reduces the chance that reading eyes will get unstuck from the page, crash land again on the same word droned verbatim in some different nearby sentence, and lose a few seconds to déjà vu or dawning discontinuity. Another consequence of the inhumanity of regimented repetition.
If we’re firmly committed to forever strive toward unattainable, inhuman consistency, like hopeful sinners planning to need confession, this could make sense. Don’t just write differently from usual, but format differently, too. But we know better—nobody’s perfect, Utopia was satire, and this rule isn’t a reliable friend to the best us—this isn’t being careful, it’s being meek. As drafters, we’re given far greater power to affect reading and meaning. We can do more than split lines and twiddle margins.
Define
At least for the second aspect of the rule—when they see two different words, courts will try to make up a distinction—we can simply tell the court to knock it off. Define the terms as synonyms.
We see this in orthodox American legal drafting already, especially in party names:
This is an agreement between ACME, Inc. (“ACME” or “Seller“)…
In the wild, this is often down to laziness or haste. If you copy-and-paste bits written using different defined terms together into one draft, it can be faster to add a name to a definition than find-and-replace to conform. But the definition mechanic doesn’t rely on any substantive trait of the words bound together. It’s perfectly possible to do this with other terms. Nearly any terms.
Alas, this is really no better than pretending we’ll write like automaton lexicographers in the first place. We’re no more infallible at defining terms than at using them. Even if we succeed in compiling comprehensive synonyms lists of every term we define, the bloated parentheticals or spillway-accident definitions sections where we stick them will only make our drafts long, redundant, and stultifying. A thesaurus isn’t good reading, either.
Overrule
So much for the shriveled fruits of incrementalism. With frank boldness now: We can simply tell courts to drop the quixotic consistency fiction altogether.
There is no rule against saying in our terms how those terms themselves should be read. Orthodox drafters do this all the time, usually at the backs of contracts, in the boilerplate. Don’t read “including” to mean “just like these”. Don’t read gender into male pronouns. When we mention a law, assume we mean with any future amendments. If two parts of our deal packet don’t agree, this one trumps the other. Don’t follow the fallback rule that says if a section isn’t clear, read it against the side that chose the wording.
A new rule would be new, but not terribly different. Here’s a first stab:
These terms use synonyms and varied wordings in natural style to make reading easier and flesh out meanings. These terms should not be read under the much-criticized rules of legal interpretation that say every use of the same word or phrase should be read the same across contexts, or that different words and phrases should always be read distinctly.
There are limits to what private drafters can tell judges to do. We can’t expect them to acquire fluent Klingon or play Opposite Day on demand, just because we pay court fees to file suits. But this new interpretive rule is hardly calling for acrobatics. It’s frank permission to read like most people do, most of the time. Even, I suspect, like most trial court judges.
Benefits
This is not a case for humanist legal drafting as populist pandering, conceding to limp attention spans, or enabling dull lawyers to nurse delusions of prose-stylist grandeur. This isn’t the argument for sugar coatings on bitter pills or cracked pepper on boiled potatoes. Variation in writing form is also substance. Describing a thing two different ways is a very normal technique we depend on to make our meaning clearer, without pretending we can understand or describe the world in one shot with an equals sign, as in math.
There’s no better evidence that drafters make infallible definers of terms than infallible users of them. The implied idea that only a definition should give meaning to a term, with all the “operative” bits of usage anchored offshore like quarantined ships, defies our common experience as readers. It defies what we see in legal opinions when courts hear fights about disputed meanings.
We learn the overwhelming majority of our vocabulary by seeing and hearing words used, not looking them up in a dictionary. It’s easy enough to name toy examples of short drafting gains, like defining “dollars” to mean “United States dollars”. But even definitions that seem analytically complete are known to flop in practice by failing to anticipate exceptions or interactions with other terms. Do “United States dollars” include USD-denominated deposits at newfangled institutions, backed by so-called “stablecoins”? When inflation runs rampant, does a definition like that bear on the timing of payments, or who bears the currency risk?
If both definition and usage build meaning, why do we lawyers, as professional writers, take definition to grim excess and pretend to eschew usage? Why aren’t accurate, non-frivolous, overlapping descriptions or uses of a concept embraced as clarifying, just as they are in speech and other styles of writing, even at oral argument?
In contract law in particular, a court’s prime directive is to decide what both sides intended, based on what they wrote. The basic approach is plain meaning, not Black’s Law Dictionary, not any secret lawyer code. An awful lot of other contract law these days is either dealing with predictable bugs in sprawling, Big-Corporate agreements, or else slyly avoiding doing injustice upon individuals who can’t afford lawyers and can’t read or write lawyerish word-garble for themselves, despite possessing competent command of the common English.
Both sides could use better writing. Where legal tradition says writing should be bad, we should let it go.
Your thoughts and feedback are always welcome by e-mail.