There is a growing sentiment among young-ish lawyers that legal documents should be attractive and should promote clarity. If you’re not a lawyer, this is probably surprising; after all, shouldn’t all documents be attractive and clear? Why is this a novel idea?
Well, I don’t know all the reasons that it’s a novel idea, but it is. Most legal documents (and not just court documents—letters and contracts, too) are clunky and nearly illegible and full of jargon. And it has evidently been this way for quite some time. For many older lawyers, clarity (both in presentation and vocabulary) is apparently a liability, not an asset. The goal, it would seem, is to confuse the heck out of everyone who might read the document, including any lawyers who might read the document that aren’t part of the initiated few who speak Latin and know what “to wit” means.
Like I said, this is changing. Bryan Garner should get a lot credit for this, as should Matthew Butterick, who is in charge of the wonderfully well-done Typography for Lawyers website and book. These are really smart guys saying important things, but they are hardly mainstream thinkers. For most lawyers, page margins and font and kerning just aren’t a priority.
But this guy is maintstream. He was a partner for 18 years at Jones Day—meaning he should be pretty “by-the-book.”
I was therefore pleasantly surprised to see Mark Herrmann’s post today at Above the Law with this catchy title: Are You A Crappy Litigator? A Self-Assessment Test.
The post is worth reading (Herrmann is a popular blogger because he’s a rare lawyers who can, well, write), but it’s basically a call to cut the crap out of your pleadings. I was particularly glad that he chose to beat up on the near-ubiquitous COMES NOW as the first words of a pleading’s introductory paragraph. I have often thought to myself: “Self, why is this important?” I was, again, so very pleased to see that Herrmann answered the question—it is not important. And, according to him, is at least a prima facie case that the one using “COMES NOW” is a crappy litigator.
The word “crappy” is probably a little heavy-handed, but I think “careless” is appropriate.