Painter, Mark P.

English

University of Arkansas at Little Rock: UALR Bowen Law Repository

The Journal of Appellate Practice and Process Volume 10 Issue 2 Article 10 2009 The Elements of Legal Style Mark P. Painter Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Judges Commons, and the Legal Writing and Research Commons Recommended Citation Mark P. Painter, The Elements of Legal Style, 10 J. APP. PRAC. & PROCESS 389 (2009). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol10/iss2/10 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. THE ELEMENTS OF LEGAL STYLEMark P. Painter*In December 1994, right after I was elected to the appellatecourt in Ohio, Bryan Garner came to Cincinnati to give his legalwriting seminar. Garner was not quite yet the guru of all Americanwriting, which he surely is now, but was already preeminent in legalwriting. His seminar ran from 9:00 to 5:00 in a hotel meeting room,complete with the mandatory hard chairs. I'm not a good sitter forthat long. But at 5:00 1 was sorry it was over. As a trial-court judge Ihad by then written a legal treatise and fifty-two nationally publisheddecisions. They were not bad. But that day I learned how they couldhave been so much better.Garner taught me more in a day than I had learned in years.And I wanted to know more. Then, Gamer hadn't published theseemingly dozens of books he has out now. So I bought what I couldfind-The Elements of Legal Style.1 This was the first edition from21991; an updated and expanded one came out in 2002. And Istudied it. But more about that later. I want first to talk about thestate of judicial writing.LAWYERESE-THE STATUS QUOHaving gone to law school before attending Garner'sseminar, I had been ruined in so many ways-but my writinghad suffered most.* Mark Painter served as a judge on the Ohio First District Court of Appeals for fourteenyears, after thirteen years on the Hamilton County Municipal Court. In March 2009 he waselected by the United Nations General Assembly to serve on the United Nations AppealsTribunal. Judge Painter is the author of more than 400 nationally published decisions, 130legal articles, and six books, including The Legal Writer: 40 Rules for the Art of LegalWriting (4th ed., Casemaker Publg./Jarndyce & Jarndyce Press 2009), which is available athttp://store.cincybooks.com. Judge Painter has given more than 100 seminars on legalwriting. Contact him through his website, www.judgepainter.org.1. Bryan A. Garner, The Elements of Legal Style (Oxford U. Press 1991).2. Bryan A. Garner, The Elements of Legal Style (2d ed., Oxford U. Press 2002).THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 10, No. 2 (Fall 2009)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSI don't remember any professor saying on the first day oflaw school that we needed to learn to "write like a lawyer."Think like a lawyer, perhaps, but not write like a lawyer. Noprofessor said to remove most verbs from your sentences, makethe sentences long and complex-200 words minimum-and theparagraphs even longer. But we got that idea from someone.I don't remember anyone telling us to use "said" for "the"or "that"; "such" for no reason at all; and weaselly terms such as"provided that" in any old place, but somehow we learned to dothat. And along the way we learned the unnecessary couplets ortriplets like "devise and bequeath"; "free and clear"; "rest,residue, and remainder" too.Of course, we also started to learn in law school how toturn perfectly good verbs like "examine," "agree," and "prefer"into nouns like "examination," "agreement," and "preference."And because a sentence must still have a verb, we learned to addweak, usually passive, verbs.One problem with law schools is that they teach students towrite like lawyers by asking them to read old cases by deadjudges who learned to write by copying older, deader judges.(Of course, Cardozo, Holmes, and Jackson were great writers,but most judges are not.) And it is not just that many judgeswrite badly. Cases are selected for casebooks not because theyare examples of good writing, or even of clarity, but becausethey illustrate the precepts of law in that course. Even whenedited, many of these cases are wordy, redundant, andconfusing. Perhaps there is value for the law student in thissituation: training her to pick out the needle of law from thehaystack of verbiage. But the inadvertent consequence ofreading all this lawspeak and bad writing is that we internalizeit. We think that if judges write this way, then it is the languageof the profession, something to be emulated.So we come out of law school writing like lawyers andjudges always have. Badly.ELEMENTS-THE REVOLUTIONGarner's Elements of Legal Style is a treatise on writing-ahow-to book for treating what ails legal writing. But it's not dry.It's fascinating. When I sat down to look the first edition overINFLUENTIAL BOOK - PAINTERfor the first time, I ended up reading it through. From his veryfirst advice-always use the serial comma-to the end, whichI'll quote later.For this article, I re-read the book's second edition. When Iread the original version fifteen years ago, much was a revelation.Now it seems familiar, because in the interim I've not only taken allthe advice to heart, but also given more than 100 plain-languageseminars and done my own (much shorter) book. But none of thiswould have happened without the original inspiration provided byGarner's seminar. I would have muddled on as most of us do.Because reading Elements made me a more effective writer, Ihope that most of my appellate opinions have been much better thanthey would have been had I never encountered Garner and hisbooks. And here, I'll just highlight what I have found in those yearsof writing to be the most important advice in Elements, which is thesame as most all advocates of plain language give. But it never hurtsto refresh that advice.It seems obvious, but writing shorter, plainer sentences is thefirst step to plainer writing. Sentences should be shorter. And phrasaladjectives-two or more adjectives modifying one noun-must behyphenated. Legalese, fancy words, euphemisms should be shunned.Get rid of the useless couplets and triplets---"null and void," "rest,residue, and remainder." These spring from Norman times, and arenonsense. Never use parenthetical numericals: "two (2)". You may,and should, begin sentences with "and" and "but." In America,commas and periods go inside quotes, always. Other good adviceabounds.And after you have read the book through, next you mustget Gamer's Dictionary of Modern Legal Usage.3 This willanswer all your questions about grammar, usage, and style. It's adictionary, but it's also enjoyable to read sections at random. Besure to start with the section on "Superstitions."FINAL ADVICEIn Elements is a passage that I quote at the end of myseminars. Because the seminars concentrate on form-which ofcourse can't be divorced from content but sometimes seems to3. Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed., Oxford U. Press1995).THE JOURNAL OF APPELLATE PRACTICE AND PROCESSbe-I urge the lawyers and judges in my audiences to rememberthat[f]aw is not just a bunch of dusty old precepts to be appliedwith humdrum objectivity. It is alive; blood coursesthrough its veins. As often as not, to apply legal rules youmust weigh, judge, and argue about human folkways andhuman foibles. And to do that well, you must have a heart.4And thanks to Bryan Garner, I now try to remember this myself.4. Garner, supra n. 2, at 178. (This passage appeared in the first edition of Elementson page 174.)

The Elements of Legal Style

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