Poetic Justice

A Dallas lawyer is urging his colleagues to put rhyme and reason back into legal writing—by using plain old English.

January 1992By Comments

The notion of a plain-speaking lawyer might well strike the casual observer as the ultimate oxymoron. Lawyers, after all, have a well-deserved reputation for making simple matters complex. Consider, for example, the judge who opined, “Parens patriae cannot be ad fundandem jurisdictionem. The zoning question is res inter alios acta” (which loosely translates as “The court doesn’t have jurisdiction”). Or the Houston lawyer who began a sentence “Accordingly, in the interest of brevity,” and then went on for 76 more words.

Or consider the State Bar of Texas’ Plain-Language Committee, which offers its own less-than-succinct definition of plain language: “Writing that conveys its meaning clearly and concisely to the intended audience in an appropriate tone of voice.”

Herewith, we now introduce Bryan A. Garner, the head of the seventeen-member Plain-Language panel, who contends that his committee is “on the side of the angels.” A 33-year-old Dallas attorney, Garner has cast himself as a crusader against “legalese,” the incomprehensible language in which lawyers too often speak and write. “Words are the primary tools lawyers have,” Garner declares, his voice rising with indignation. “Eloquence—the ability to communicate clearly—ought to be a highly prized skill in the legal profession. It seems to be neglected almost universally.”

But stamping out lawyers’ language is likely to be more difficult than understanding a three-party contract. Attorneys employ legalese partly because they believe judges prefer it, partly out of ossified habits that date back to law school, and partly because they believe it makes the profession indispensable. “The idea is to be unintelligible to make yourself necessary,” says Kevin Dubose, a member of the Plain-Language Committee who teaches legal writing at the University of Houston Law School. “We express ourselves in ways that are calculated to create barriers between ourselves and the general public.”

Darrell Jordan, a partner in the Dallas firm of Hughes and Luce, maintains that lawyers employ jargon to sound like lawyers. “That’s the way the cases we studied were written,” he says. “People thought unless you could say it obscurely, it must not be very sound legal work.”

The Plain-Language Committee has taken up the cause of stamping out such insidious ways of thinking. Part of a growing international campaign against legalese, the panel is almost entirely Garner’s creation. He proposed it in November 1989 to Jordan, who was then the president of the State Bar. “He was talking to somebody who didn’t know much about the concept at all,” Jordan recalls. “But Bryan really had a vision that this thing could be useful, not only to lawyers but to the institutions of our government and the public at large.”

The committee has also turned out to be useful to Garner. Like all crusaders, Garner seems to have been born to his mission. A serious, square-faced man who looks like a young Andy Rooney in an unrumpled suit, Garner has always been absorbed with words. He is the author of The Elements of Legal Style, which was published last April by Oxford University Press. The book earned gushing praise from former U.S. attorney general Griffin Bell and legendary former Harvard Law School dean Erwin Griswold. Barrister magazine even noted that Garner has become “America’s foremost authority on language and the law.”

Garner admits that he is hooked on language. “I’m probably one of the only individuals with three sets of the Oxford English Dictionary,” he boasts. He is, indeed, a dictionary fiend. He writes dictionaries, reads them, and owns them—more than 150 at last count, filling a room in his Dallas home.

Garner grew up in Canyon, the son of a West Texas State University music professor and the grandson of a Texas Supreme Court justice. As an undergraduate, he studied Shakespeare at the University of Texas and during summers at Oxford University. He contemplated pursuing a Ph.D. in lexicography before deciding on law. Even then, it was legal language, not business deals or courtroom dramatics, that obsessed him. During first-year law classes at UT, he scribbled a note card each time he encountered an intriguing legal phrase. By the time he graduated in 1984, he had amassed 15,000 cards—a stack that eventually became A Dictionary of Modern Legal Usage (Oxford University Press, 1987), which won acclaim from law reviews and bar journals.

The book’s success enabled Garner to resign in 1988 from his post as an asso-ciate with a Dallas law firm to pursue his personal Holy Grail—the Oxford Law Dictionary, the law profession’s equiva-lent of the OED. Embracing Garner’s vision, UT and Oxford agreed to cosponsor the venture. It was to be a $2 million, ten-year, seven-thousand-page enterprise headquartered in Austin—“the most important scholarly project in the field of law in the twentieth century,” declares Garner, “the crowning achievement of my career.” The young lawyer received an impressive—and wordy—title: director and editor-in-chief of the University of Texas School of Law and Oxford University Press Center for Legal Lexicography.

There was just one catch. Garner had to raise the money for the project himself. Despite extensive hobnobbing with American legal luminaries, a fundraising bash at the British Embassy, and a last-minute appeal to wealthy publisher and philanthropist Walter Annenberg, Garner was able to collect only about $600,000 in pledges. In August 1990, UT and Oxford pulled the plug on the project. “I was crushed,” says Garner, looking truly mournful. “I went through a period, for two or three months, of grieving over it.”

Garner then turned full-time to the comparatively pedestrian task of teach-ing Texas lawyers to speak and write in simple English. He moved back to Dallas with his wife and daughter and founded LawProse, a consulting firm that allows him to make a living from showing lawyers how to practice the preaching of the Plain-Language Committee. Garner and his four associates—three of them English Ph.D.’s—offer speeches, seminars, and editing services to attorneys. LawProse’s promotional literature even touts the firm’s “Masterclass” as “unequaled training for the legal writer.”

Like most men of passion, Garner at times rubs his colleagues the wrong way. Some snipe about his qualifications to serve as Texas’ Pied Piper of plain English. They note his tendency to drop the names of British peers—the Right Honorable Lord Goff of Chieveley is a favorite—as well as his taste for obscure vocabulary. “His own language is not plain,” says one of Garner’s former UT peers. “He asks people not to be pompous, and then out come the ten- and twenty-dollar words.” In a 1989 Litigation article titled “The Language of Appellate Advocacy,” Garner advised his readers to “use the alembic of your mind to distill the essence of the issues.” And he once complained in public, “You read this, and it doesn’t parse.”

Garner responds that being anti-legalese does not require him to be against unusual words. “This is not a plain-language jihad. A lot of plain-language advocates are really anti-intellectual. They just don’t want to say anything they don’t understand. That’s impossible. What we want to eliminate is what’s needlessly obscure,” he says.

What exactly is the Plain-Language Committee doing? So far, it is proceeding judiciously. It began by sending a legal-language survey to five hundred judges across Texas. The survey asked them to select their preference between examples of plain English and common legal jargon. The first pair offered:

Choice A: “Now comes the above named John Smith, plaintiff herein, by and through Darrow & Holmes, his attorneys of record, and shows unto this Honorable Court as follows:”

Choice B: “For his complaint, the plaintiff says:”

More than three quarters of the judges selected the plain-English choices. Garner hopes that such results will eliminate a major incentive for using legalese: the belief that judges prefer it.

The panel is also using humor to spread its message. Last June the committee unveiled its Legaldegook Awards, recognizing the worst examples of legal writing from all over the country. The Typo Graphic Award went to an entry that read, “In the index to this brief, the Court will find an extensive copulation of authorities on this subject.” The committee declined to speak plainly, however, when it came to naming the offenders. “That would be really meanspirited,” says Garner. “I don’t think our committee would survive very long if we did that.”

Garner says the committee’s next step is to produce a pamphlet and perhaps a video on the importance of avoiding legalese.  He also plans to attend an international conference of leaders of the plain-language movement in Australia next year.

Unfortunately, his panel has made no progress on the task that could make the most difference to nonlawyers who deal with the Texas legal system: simplifying standard legal forms. Contracts, wills, promissory notes, and deeds contain the most incomprehensible examples of legalese, but the committee has yet to make any attempt to find out what changes consumers of legal services want. “Changing the forms,” law professor Dubose says, “is the single most important thing we can do.”

That goal is also on Bryan Garner’s agenda. “We’d like to see real progress—certainly by the end of the millennium.” Garner smiles at his own joke, then grows serious. “I’d like to see some real tangible results in the next couple of years.”

Until that happens, however, most Texas consumers will continue to believe that the only plain language lawyers understand is money.

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