Bryan A. Garner dates the origins to the classical Greek and Roman era’s competing rhetorical traditions. One tradition is florid Asiatic prose, and is the prose of John Milton and Benjamin Cardozo. The competing Attic prose is more plain, and is the prose of Hemingway and Oliver Wendell Holmes, Jr. Others, including ancient Rome’s Cicero, used both. Bryan A. Garner, Garner on Language and Writing (American Bar Association 2009) 40-46.
Word choices are part of the problem. Some briefs read like the essays from the study of students who used a thesaurus to substitute big words for little ones. The efforts to appear smarter backfired; the needless complexity caused the readers to hold the writers in less esteem, not more. Oppenheimer, Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Appl. Cognit. Psychol. 139-156 (2006).
Justice Clarence Thomas recently agreed that genius lies not in using big words but in expressly big ideas simply. He explained that his goal is to write opinions that make the law accessible to the average person:
As I say to them [my law clerks], the beauty, the genius is not to write a 5 cent idea in a ten dollar sentence. It’s to put a ten dollar idea in a 5 cent sentence.
That’s beauty. That’s editing. That’s writing.. . .
The editing we do is for clarity and simplicity without losing meaning, and without adding things. You don’t see a lot of double entendres, you don’t see word play and cuteness. We’re not there to win a literary award. We’re there to write opinions that some busy person or somebody at their kitchen table can read and say, “I don’t agree with a word he said, but I understand what he said.
– Justice Clarence Thomas
In Tip 45 of The Winning Brief, Garner put the point succinctly:
If you save syllables, you gain in clarity and force. You’re no longer writing to impress, but to express. And that is the prerequisite to persuasion.
– Bryan A. Garner
For further history on legalese, Andy Mergendahl over at The Lawyerist is writing a series of posts on the history of how legal writing became what it is today. His fellow Lawyerist blogger, Matthew R. Salzwedel, has also posted on using simpler words.
Has anyone read a brief that made you run to a dictionary only to discover that a short, Anglo-Saxon word, was better? And then you smiled because you knew that an already overworked law clerk or judge would have to do the same?
Please share your story by leaving a reply or reaching me at www.attorneyroberthill.com.