Legal Writing: Practice (and a Few Tools) Makes Perfect
No matter how often you write there is always room for improvement. Correct word choice, sentence structure, and impeccable grammar are requirements. Structure, flow, meaning, and intent are vital to cognition. Your writing should be clear and unambiguous. There are tips and tools to help you write more effectively.
Writing for the Reader
A recent MIT study examined why legal documents are notoriously difficult for nonlawyers to understand. The study reveals why legal language is “borderline incomprehensible”. The researchers found that center-embedding and use of uncommon words were the biggest culprits causing difficulty for reading comprehension. Center embedding is sentence construction in which a writer inserts a definition in the middle of a sentence. An example of center-embedding in the study is:
“In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the ‘Total Payments’), would be subject to excise tax, then the cash severance payments shall be reduced.”
And offers a more understandable alternative:
“In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All payments and benefits by the Company shall hereinafter be referred to as the ‘Total Payments.’ This includes the payments and benefits under Section 3(a) hereof.”
Passive voice, use of uncommon words, and unusual capitalization also contribute to the layperson’s inability to comprehend legal documents. The study found that use of words like “lessee” and “lessor” versus “tenant” and “landlord” contributed to the confusion.
Of course, it depends for whom you are writing and what you are writing it for – a blog post for education and marketing will be a completely different exercise than writing a brief, motion, or contract. In legal writing some of the elements the MIT Study cites as problematic are required. However, you can still work to make your writing as easy to follow as possible.
Tools That Can Help
It is hard to edit your own work. There are several software add-ons for Microsoft Word that can help you review documents for readability, consistency, and proofing.
WordRake is an editing program created specifically for lawyers. An add-in to both Word and Outlook, the software “rakes” your documents in search of unnecessary and obtuse words, suggesting edits to improve clarity and concision. It is the creation of Gary Kinder, a lawyer, writing expert, and writing coach. WordRake searches for phrases lawyers often use –– such as “in addition to,” “pursuant to” and “in accordance with” –– and suggests simpler words such as “besides” and “under.” It acts as a good editor to help simplify and strengthen your writing. WordRake offers a seven-day free trial. After that it is sold on a subscription basis. A one-year subscription to the Word add-in is $129 for one year or you can purchase a subscription to both Word and Outlook for $199. WordRake works on Mac and Windows for Word; Windows only in Outlook.
From a company called Intelligent Editing, the PerfectIt editor is a Microsoft Word plugin that works with any version of Word on a PC and in Word on a Mac with Office 365. This editing tool checks for a consistent presentation of abbreviations and makes sure that the abbreviation is defined the first time it appears. It also checks for consistent hyphenation, consistency in capitalization in a bulleted list, and table punctuation. The newest version also checks for consistent use (or abuse) of the Oxford comma. PerfectIt includes legal writing and style rules, including checking Bluebook citation formatting and enforcing style and formatting rules from Bryan Garner’s The Red Book and Black’s Law Dictionary. It also checks for legal-specific typos. PerfectIt opens in a separate task pane in Word and the user performs checks and tests on the document. The cost for a single user is $70 per year and there is a 14-day free trial. For Teams, PerfectIt has options to enforce a “house style” to create shared style sheets and includes a list of avoided phrases and enforces style preferences so that all writers in the firm consistently use the same voice.
Loio is “AI-driven” document drafting software. It checks for data accuracy, formatting, consistency, missing provisions, as well as automated clause management and bilingual contract support. The Business version is $59 per seat (20 seats), though there is a limited free version if you want to see if it is useful.
One Microsoft Word add-on, BriefCatch, has many similar features to WordRake. They both suggest edits to make your writing more concise. BriefCatch also provides a statistics panel that supplies scores on “reading happiness,” “sentence length,” “flow index,” “punchiness,” and “plain English”. You can see suggestions on how to improve each score. BriefCatch also creates a narrative report to provide a summary of improvement opportunities including how often you use the same transitional devices (e.g., “moreover”) or overused terms (e.g., “the fact that”). BriefCatch is $250 per year for a Microsoft Word plugin.
Litigation Companion is a document review and TOA creation add-in that flags content and citation errors and generates a TOA powered by the Best Authority engine from Litera. It also adds hyperlinks to case citations and references from a wide range of online research providers and checks case citations. If you are looking for a whole suite of review, proofing, and checking tools, Litera offers the Litera Desktop, which includes document assembly, content libraries, templates, collaboration, formatting fixes, metadata removal and more.
LinkChecker for Microsoft Word from AbleBits is so simple you wonder why you would pay for it (a $29.95 one-time fee). Until you must manually click on hundreds of links in a document to make sure the links still work. If you are working on a brief or a document for a client, LinkChecker will check all hyperlinks in the document to make sure they work. It also checks cross-references in your document like hyperlinked Table of Contents or Table of Authorities (TOA).
The Hemingway Editor is an installed piece of software for Windows or Mac ($19) that highlights wordy sentences, overuse of adverbs, passive voice, and complicated words. This is an especially useful tool for writing blog posts or content intended for the layperson and published online.
Writing Tips(ters)
Professor Laura Graham at Wake Forest University School of Law has written the “Writing that Works” column in the NC Lawyer for over 10 years. Her helpful articles include “Conciseness: Why It’s Important and How to Achieve It”, “Don’t Eschew the Comma”, “Avoiding the Zombie Nouns”, and “Creating a Legal Writing ‘Hit List’”. If you have missed any of her recent contributions, you can find them in the new online version of the North Carolina Lawyer.
Ross Guberman, creator of BriefCatch, has an educational and entertaining blog you can follow. Famed legal writing guru Bryan Garner has a blog, as well as email newsletters. He also has a column in the ABA Journal.
Conclusion
The stakes are high in legal writing. Careful review of documents is essential and adding a few tools to your arsenal may help. Identify the audience and write accordingly. Practice – and proofing – make perfect!