Legal Research and Writing

The Consequences of Bad Legal Writing

Avoiding reprimands, case dismissals and more.

By Christy Hall Benson, CLA

March/April 2007 Table of Contents

“The minute you read something that you can’t understand,
you can almost be sure it was drawn up by a lawyer.”

— Will Rogers

Although this quotation by Will Rogers is humorous, bad legal writing is no laughing matter. Courts throughout the country are losing patience with attorneys and their poor writing skills. As a result, judges are issuing public reprimands, requiring attorneys to take legal writing courses and dismissing complaints for committing crimes against the English language such as excessive spelling errors, bad grammar and poor organization. As paralegals, we can be invaluable resources to attorneys by editing legal documents before they leave our offices. This article explores some of the consequences of bad legal writing and gives you the tools to help you prevent your attorney form facing these consequences.

Spelling and Typographical Errors

A bankruptcy attorney in Minnesota was publicly reprimanded for unprofessional conduct and ordered to pay court costs after repeatedly filing documents the court considered “unintelligible” because they contained numerous spelling and typographical errors. Additionally, the attorney was required to attend legal writing courses. The judge wrote in his opinion, “Public confidence in the legal system is shaken … when a lawyer’s correspondence and legal documents are so filled with [these] errors that they are virtually incomprehensible.” In re Hawkins, 502 N.W.2d 770 (1993).

Follow these guidelines to ensure your documents are free from spelling errors and typos:

• Print out your document and do a manual edit on paper before editing electronically.

• If possible, allow some time to pass between drafting the document and self-editing.

• Ask another person to edit your document.

• Don’t rely 100 percent on your computer’s spell checker. Although spelled correctly, a word could be used improperly (e.g., trail judge instead of trial judge, statues instead of statutes, etc.).

Bad Grammar

In Mississippi, a defendant appealed a district attorney’s burglary indictment, stating that it didn’t charge him with anything because it contained bad grammar. In part, the indictment charged that the “goods, ware, and merchandise unlawfully, feloniously and burglariously did break and enter.” The defendant presented an English teacher as an expert witness. In its opinion, the court said if the “rules of English grammar are a part of the positive law of [Mississippi], [the defendant’s] burglary conviction must surely be reversed, for the indictment in which he has been charged would receive an ‘F’ from every English teacher in the land.” Even though the court held the indictment to be legally sufficient, the judge stated that even Shakespeare could not have understood the indictment, which was “grammatically unintelligible.” Henderson v. State, 445 So. 2d 1364 (1984).

Good legal writing should follow all the rules of grammar. Your documents should be written in complete sentences, have subjects and verbs that agree with one another and contain properly placed modifiers. You don’t have to be a grammar expert to be a good legal writer; just know where to go to find the answers. Two great desk references are “The Associated Press Stylebook and Briefing on Media Law” (considered the journalist’s “Bible”) and the “Gregg Reference Manual.” Both are available for purchase online and at bookstores.

Poor Organization

In Duncan v. AT & T Communications, Inc., 668 F. Supp. 232 (1987), the defendant’s motion to dismiss was granted for several reasons, including poor organization. The court’s opinion stated: “A complaint may be so poorly composed as to be functionally illegible. This is not to say that a complaint needs to resemble a winning entry in an essay contest.”

The purpose of writing any legal document should guide your organization of it. Do you intend to advise a client, prepare for trial or draft a pleading? Using these strategies will ensure your documents are properly organized:

• Write an outline before drafting.

• Summarize your position in the introduction and the conclusion of your document.

• Use topic sentences to inform the reader of the contents of your paragraphs.

• Consider using a miniature table of contents or topic headings when your document exceeds three or four pages. Headings act like a skeleton to hold your body of work together and break up the text of a document, and can serve as an index to help readers find important information.

Citation Errors

Another element of bad writing is citing case law incorrectly. In a Vermont Case, In re Shepperson, 674 A.2d 1273 (1996), an attorney repeatedly submitted briefs to the courts during a seven-year period that contained “numerous citation errors that made identification of cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.” One brief in particular was more than 90 pages long, and the judge noted that the attorney “fail[ed] to raise a legitimate legal issue or cite a single authority in support of his arguments.” The attorney appealed a lower court’s decision that he attend a six-month tutorial program designed to improve his skills. The appeals court suspended him for “not less than six months” and “until he has demonstrated to the satisfaction of the court that he is fit to practice law.”

To prevent citation errors, keep these tips in mind:

• The main goal of citing properly is to allow the reader to easily retrieve the citation.

• Rely on respected citation sources such as “The Bluebook” or the “ALWD Citation Manual.” Also, check with the courts in your particular state to see if any local citation guidelines exist.

• Never rely on outdated law. Always Shepardize your cases before submitting any document to the court and again right before a trial.

Not only does bad writing negatively impact attorneys, it can ruin the reputation of the entire legal profession. Bad legal writing weakens credibility and wastes the time of judges, other attorneys and clients, thereby wasting money. To ensure your documents don’t merit the same consequences, remember: edit, edit, edit!

Where to Go for Writing Help

• Merriam-Webster dictionary on the Web (www.m-w.com)

• Law.com legal dictionary (http://dictionary.law.com)

• Writing and research guidelines developed by Professor Colleen Bargar of the University of Arkansas at Little Rock (www.ualr.edu/cmbarger). Click on “Writer’s Resources,” then on “Citations” for links to a variety of information ranging from tips for using “The Bluebook” to avoiding plagiarism when citing.

• Google’s Writing Resources (http://directory.google.com/Top/Arts/Writers_ Resources/Style_Guides/Grammar)

• Strunk and White’s “The Elements of Style,” published by Pearson Longman

• Washington State University English Professor Paul Brians’ Common Errors in English (www.wsu.edu/~brians/errors)