Great writers and great legal writing

Lord Macmillan (1873-1952), a one-time law lord, wrote that to be a good lawyer it does not suffice to know the law. Also needed, he suggested, is:

‘that width of comprehension… serenity of outlook and… catholicity of sympathy which can no-wise be so well acquired as from… great masters of literature ’ (Law and Other Things , Cambridge University Press: 1937, p 138).

In this article I consider essays on literary writing by two ‘masters of literature’ – George Orwell (1903-1950) and Mark Twain (1835-1910) – and examine how their observations can be applied to legal writing also.

George Orwell’s rules for better English

In Politics and the English Language (1946) Orwell suggests that the principal deficiencies of modern written English include the following:

• Slovenly language: Orwell posits that slovenly language makes it easier for the author/reader to have foolish thoughts. Similarly, the reader of a legal text presented with careless writing may struggle to understand what precisely the author meant to say.
• Vagueness and incompetence: Orwell objects to ‘vagueness and… incompetence’ in prose. By ‘incompetence’ he means saying something that one does not quite mean or proceeding heedless as to meaning. A legal writer, it is submitted, should avoid both writing vaguely and failing to focus on the precise meanings of words.
• Dying metaphors: Orwell complains of metaphors which use the imagery of a bygone age, eg, ‘ride roughshod over’ (few people now ride horses) or ‘Achilles’ heel’ (a phrase requiring knowledge of Greek mythology). In legal writing too it surely cannot facilitate understanding if lawyers use the terminology/imagery of a bygone age. Lawyers also need to be careful not to use words/metaphors that are understandable to the well-educated but not more generally.
• ‘Verbal false limbs’: By the just-quoted phrase, Orwell means to refer to, eg (i) using complex verbs in place of simple ones; (ii) over-use of the passive voice; (iii) using too narrow an array of verbs; (iv) use of the not-un formation (eg ‘she was not unclear’ rather than ‘she was clear’); (v) using unduly complex conjunctions/prepositions (eg ‘with respect to’ rather than ‘about’); and (vi) use of phrases that seem to add richness but only add ‘padding’. What Orwell’s observations arguably point to are that a legal writer should aim for plainness of text, avoid the ‘not un-‘ formation, use simple conjunctions/prepositions, and avoid ‘padding’.
• Pretentious diction: Orwell is critical of (i) use of ‘fancy’ words/adjectives; (ii) deployment of abbreviations other than commonplace ones (such as ‘eg’, ‘etc’); and (iii) use of foreign phrases/words. Legal writers too, it is submitted, should avoid the ornamental, the uncommon, and foreign phrases/words (including Latinisms).
• Cutting and pasting: Orwell (writing in the 1940s) pointed to a trend of ‘gumming together long strips of words’ which another person had composed and linking them loosely into a whole. In 21st century legal texts (including judgments) there is something of an epidemic of ‘cutting and pasting’, often in disregard of the desirability of brevity, simplicity, and clarity in legal writing.

Orwell suggests that conscientious writers will ask the following questions as they write each new sentence:

1. What am I trying to say?
2. What words will express it?
3. What image or idiom will make it clearer?
4. Is…[an] image fresh enough to have an effect?
5. Could I put it more shortly?
6. Have I said anything… avoidably ugly?

Conscientious legal writers might ask a similar set of questions of themselves as they write.

Orwell also identifies a number of ‘rules’ for better English that include the following:

1. Never use a long word where a short one will do.
2. If it is possible to cut a word out… cut it out.
3. Never use the passive where you can use the active.
4. Never use a foreign phrase… scientific word or… jargon… if you can think of an everyday English equivalent.
5. Break any of these rules sooner than say anything outright barbarous.

These rules do not ensure that one will avoid using bad English. However, they should assist in avoiding a situation where language conceals thought rather than expressing it.

Mark Twain’s rules of romantic fiction

In ‘Fennimore Cooper’s Literary Offences’, an essay of 1895 on the works of James Fenimore Cooper (author of The Last of the Mohicans), Mark Twain posits a number of ‘rules’ of romantic fiction, several of which seem also to have a resonance when it comes to legal writing:

• A tale must accomplish something and arrive somewhere: a legal text has an object and must satisfy that object.
• Episodes of a tale must be necessary and advance the tale: each element of a legal text must be essential and must advance the text to its conclusion.
• Descriptive text should be included if and as needed.
• ‘Crass stupidities’ should not be stated: this is an imperative of legal writing.
• A contention must be ‘so plausibly set… forth as to make it look possible and reasonable’: the same is true of legal writing if it is to impress and persuade.
• An author must ‘make the reader feel…deep interest in the personages of his tale and…their fate’: a legal text is unlikely to persuade if it fails to engage).

Twain then identifies seven rules that have more to do with the form of prose than its substance, all of which can also usefully be applied by legal writers. Thus, he observes, a writer should:

1. Say what he is proposing to say, not merely come near it.
2. Use the right word, not its second cousin.
3. Eschew surplusage.
4. Not omit necessary details.
5. Avoid slovenliness of form.
6. Use good grammar.
7. Employ a simple and straightforward style.

Twain also makes a miscellany of points as to, eg, variety in prose, inferiority of style to substance, clarity of prose, keenness of observation, the importance of sound (even in writing intended solely for reading), and careful word-choice. From Twain’s observations it is possible to divine the following ‘rules’ (that appear also to hold true for legal writing):

1. Aim for simpler prose.
2. Recognise that more complex prose may sometimes be clearer.
3. Seek always to use plain English.
4. Use the technically correct if that brings clarity.
5. Economise on adjectives.
6. Consider using words with fewer syllables.

Conclusion

Lord Macmillan observes that:

‘Words… are the raw material of the lawyer’s trade…[T]he possession of a good literary style which enables him to make effective use of that material is one of the most valuable of all professional equipments.’

Macmillan urges lawyers to read the classics of literature if they wish to avoid ‘vulgarity’ (ugliness of style) in their writing. Perhaps even more pertinently, lawyers should consider what literary ‘greats’ have to say about the task of writing. The professional insights of those ‘greats’, it is submitted, can often usefully be brought to bear when it comes to the task of legal writing.