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If You Wouldn’t Say It, Don’t Write It

November 1, 2010

This is the year 2010, and I encourage lawyers to get out of the habit of using static, outdated words and phrases in their writing. There are so many articles and books about “Plain English” which recite all these subjective guideposts for effective legal writing. I can break them all down into one general rule, which is: If you wouldn’t Say It, don’t Write It.

Hypothetically, if a lawyer is asked by her client, “where is my settlement check?,” I doubt the lawyer would respond by saying, “it is enclosed herewith.” Similarly, if the client asks her lawyer, “what’s going on with my case,” the lawyer probably wouldn’t begin the response with the phrase, “Please be advised…” So, why do we use these words and phrases in our legal writing?

In spite of all the suggestions for great legal writing, too many archaic words and phrases are still in use today. Instead of all the articles about how to revise legal writing, maybe the question should be, why are lawyers so wedded to legalese and why won’t they change. Is it for Formality; Exclusivity; or because of Precedent? Once we answer that question, hopefully we can begin to move away from the herewiths and heretofores and arguendos.