Richard Harris (the author, not the actor), in Hints on Advocacy (17th ed. 1937), said that advocacy can never be mastered; the most we can do is to learn a little and unlearn a great deal. Legal writing is similar; becoming good at it is often more a matter of unlearning than learning.
Lawyers like everyone else, learn their language mainly by imitation. The problem is that lawyers as a group are bad writers. Young lawyers imitate the language of more experienced lawyers, thinking they are learning to write professionally when they are really just picking up bad habits.
The following are five such bad habits. As young lawyers, we all learned - by rote rather than by thought - to use phrases like these. And many of us probably still use them, purely out of habit. We can improve our writing by unlearning phrases like the five that follow.
"I am in receipt of…"
No one would write Grandma to tell he, "I am in receipt of the fruitcake you sent for Christmas." Yet lawyers often write nonsense like "I am in receipt of your letter."
Instead of using this silly phrase, try expressing the thought the way a person using normal American English would express it: "I have received your letter." If the date the letter arrived is important, say: "Your letter arrived in today’s mail." Or, if you were glad to get the letter, acknowledge receipt with a polite expression of gratitude. "Thank you for your letter" works just as well as "Thank you for the fruitcake."
"Please be advised that…"
This has to be the most useless phrase that lawyers commonly use. Unless you are striving for comic relief, there is not a single sentence containing this phrase that you can’t improve by deleting it. If you want someone to be aware of something, just say it. Any message you are trying to get across will have more impact without the excess verbiage. Consider these examples:
- Your hair is on fire.
- Please be advised that your hair is on fire.
There are other phrases of the same ilk that lawyers commonly use. Legal writing authority Richard Wydick calls them "throat-clearing." Examples include: "It is important to note that…" "It may be recalled that…" and "It is interesting to point out that…" All of these are just as useless as "Please be advised that."
The cure for all these throat-clearing phrases is simple: Just delete them.
"Enclosed please find…"
Does anyone know what the verb "find" is supposed to mean in this context? It certainly doesn’t connote anything that ordinary people mean when they say "find" - unless the writer has a very low opinion of the reader’s intelligence. "Hey, Jerry, have you found that enclosure yet?" "Yeah, I finally found it. It was stapled to the cover letter."
There are many simple and sensible ways to describe an enclosure accompanying a letter. One example: "Enclosed is the executed settlement agreement." For an even more normal construction, try putting the subject first: "The executed settlement agreement is enclosed." If you’re fond of colloquial writing, try "Here is the executed settlement agreement." All these examples are better than "enclosed please find."
The "said" and "same" twins
"Have you tried the roast beef? Said roast beef is excellent. Please pass same." If you heard conversation like this at the dinner table, you would conclude that you were with a pompous nitwit. What impression, then, do you think we lawyers make when we write things like: "In contravention of the rights of said plaintiff, said defendant took plaintiff’s chattel and converted same to his own use"?
Lawyers often misuse "the instant" as a pompous substitute for "this" or "the." We’ve all seen drivel like "the instant motion" and "the instant case." I’ve even seen "the instant accident," and the writer did not mean an accident that happened instantaneously. I’ve had instant coffee and instant oatmeal, but I’ve never been able to whip up an instant motion. And, what is the opposite of an instant accident - an accident that takes half an hour to occur?
Instead of misusing "instant" like this, replace it with "this" or "the," and improve your writing instantly: "this motion," "this case," "the accident."
Reprinted with permission. © 2000 Defense Research Institute, Inc.