Obsession with accuracy can lead to poor legal writing

The road to Hell is paved with good intentions, and so is the road to poor legal writing. To illustrate this point let's use a real-life example from a recent appellate court opinion. The opinion begins like this:

A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was travelling.

What's wrong with this sentence? First, the writer, acting with the best possible intentions, is trying to do too much at once. The writer is trying, in this opening sentence, to set the stage quickly and explain what the lawsuit is about. And, of course, the writer is trying to be meticulously accurate.

Yes, the sentence is accurate and complete. But it is also not very user-friendly. To start with a seemingly small matter, why is the locomotive is the subject of the sentence? Most lawsuits begin because the plaintiff files a lawsuit. So, if you want to set the stage and explain how the lawsuit arose, why not make the plaintiff the subject of the sentence? Like this:

This lawsuit was brought by Kelli Smallwood...

Let's assume that's how the sentence started out. The rest is easy, right? No, not really. At this point, in the interest of achieving complete accuracy, the typical legal writer will add "as a result of injuries she sustained when the automobile in which she was travelling was struck by a locomotive operated by Illinois Central Railroad Company." This is grammatically correct and factually accurate, but it is also unnecessarily verbose.

For example, why refer to the car as "the automobile in which she was travelling"? Why not simply say "her car"? Many lawyers would quickly suggest that perhaps she didn't own the car. If she didn't own it then we can't say "the locomotive struck her car," can we? I respectfully disagree. I have tremendous respect for the need to be thorough and accurate, but I also think we have to exercise some common sense here and see if we can create a sentence that is simple and easily readable.

We should opt for "the train struck her car," unless somehow ownership of the car is a legal issue that will come up in the opinion. If the ownership of the car is a legal issue then it might confuse the reader to first be told the train "hit her car" and then later be told that there is an issue about whether she actually owns the car. But, ownership is not an issue in this case. So, then, why not refer to the car the way that most people (including lawyers) do when they are having an ordinary conversation?

Most people understand if you say "her car got hit by a train" that you might mean "the car she was riding in." It's a shorthand way of stating the fact that even children understand. But somehow, without even much formal discussion, it seems to have become a taboo in legal writing to state things in a colloquial manner. Readers simply cannot be left to make assumptions, even if they are likely to make valid assumptions.

That's why the writer of the sentence we are discussing used parentheses after the defendant's name (e.g. "A locomotive operated by Illinois Central Railroad Company (Illinois Central)..."). Why do this? Is there is more than one party with the word "Illinois" in their name? No. So why do we need to alert the reader that we are going to use the abbreviation "Illinois Central"? Is the reader not capable of figuring this out without explicit instruction? Or is it simply that the parentheses lend an aura of credibility by demonstrating that the writer is obsessed with accuracy?

Perhaps this is why legal writers give the complete date when they describe the facts. They say things like "On March 14, 2001, Kelli Smallwood was injured...." (this is not from the opinion; I'm just making it up as an example). When I read specific dates in a brief or a judicial opinion I assume that somehow they might matter and so I start memorizing them. Invariably, I find that the dates don't have any legal significance, and I resent having taken the time to memorize them.

The accuracy-obssessed writer will say, "but how can I convey to the reader when the accident took place"? The answer to this problem is so simple it's laughable, and yet few lawyers have managed to figure it out. Just say "in early 2001 Kelli Smallwood was injured..." The reader is thereby given a sense of when the accident took place, but also given a signal that the precise date is not important. Unfortunately, most legal writers would resist this suggestion. They feel that it is important to be completely accurate. They'd probably go on to tell their readers the exact time that the accident took place too.

Anyway, to wrap up this exercise, here is another perfectly acceptable way of writing the opening sentence.

This lawsuit was brought by Kelli Smallwood who was injured when her car was hit by a train at a railroad crossing.

We have changed the word "struck" to "hit" and the word "locomotive" to "train." That drops three syllables, which is always helpful. Yes, it's true that I have not mentioned the defendant in that sentence, but I can easily add another sentence that introduces the defendant (e.g. "The train was operated by...."). My point is that legal writers should loosen their obsession with accuracy and think about readability too.

Accuracy is obviously the paramount objective for the writer of a judicial opinion. But elements that enhance readability are also very important. For those writers who want to be completely accurate I suggest they learn a computer programming language. Such writers would learn that computers are wonderful devices to write for because they crave accuracy. Why? Because they lack any shred of judgment and they can't figure anything out for themselves.

Fortunately, most humans are not like computers. At least not yet.

Comments

[Kelly Talcott]

Good article. Try this:

Kelli Smallwood was injured when her car was hit by a train at a railroad crossing. She sued the Illinois Central Railroad Company, alleging that Illinois Central failed to . . . etc.

Judge Alex Kozinski of the 9th Circuit works very hard to write with brevity and wit. His opinions are often fun to read. His recent opinion in the Sex.com case is a typical example:
[ http://www.ca9.uscourts.gov/ca9/newopinions.nsf/999D1D5B0D734B6088256D6D0078CB88/$file/0115899.pdf?openelement ]

[Bryan]

I love this post. I used to work in the appellate court in Illinois. Part of our job was to read all of the opinions that were issued, even those that were not published. One such unpublished opinion involved a juvenile. With juvenile cases, only the child's initials are used, that way the child's identity is not revealed. The opinion began as follows:

T.J. Jr. ("T.J.") appeals from a finding of juvenile delinqunincy. T.J. resides with his mother Florence Jackson and father Thomas Jackson, Sr., at 123 Main St., Apt. 201, Rockford, Winnebago County, Illinois.

Although the names in mine are ficticous, the ones in the opinion were not. All of the information was clearly irrelevant of course. I don't know what the judge was thinking when he let this one go through. I'm just glad that the court used initials so the juvenile could not be identified.

[Scheherazade Fowler]

Amen, brother Ernie. I am all the time asking other lawyers in the firm why we're including seventeen words that appear to mean the same thing. Would the import of this document change if we left out this word? If so, can you explain how so I understand the difference between terms I once thought were identical? If not, isn't it a redundancy, and can't I take it out?

Invariably, I get told to leave the terms in. "Belt and suspenders." It makes me crazy.

See you at Pop!Tech....

[C.E. Petit]

Much of the difficulty can be traced to drunk law review editors at Harvard, Columbia, and Penn. The Blue Book stifles clarity. Ernie's examples are good. Now try adding some parallel citations with pinpoints to each reporter, and perhaps some Shepardizing results... I hated cite-checking. I hated editing articles even more.

I'm one of those weirdos who thinks that, with only a few exceptions, citations belong in footnotes. If the exact citation matters to the substance of the argument, I can see a case for a short form of it. Perhaps this is one of the causes of the gulf between academic lawyers (who use more footnotes than are good for them) and practicing lawyers (who couldn't use a footnote properly if it bit them)?

[J-school grad]

"For those writers who want to be completely accurate I suggest they learn a computer programming language." Nineteen years ago I told the dean of my journalism school the same thing. He looked at me as if I had antlers growing from my head. After a career in journalism I went to law school. Now my colleagues praise my legal writing.

[Brian Peterson]

I heartily agree with your suggestions, Ernie. You hit the nail on the head again.

Your revision of the sentence in question is a vast improvement. It could be improved even further by changing the verbs to active voice.

Original sentence:
A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was travelling.

Clearer sentence:
This lawsuit was brought by Kelli Smallwood who was injured when her car was hit by a train at a railroad crossing.

Even clearer sentence:
Kelli Smallwood sued Illinois Central after one of its trains struck her vehicle at a railroad crossing in early 2001.

Lawyers fear verbs, and for no good reason. Verbs are the engines that drive sentences, yet we water them down by using passive voice. Instead of saying "the lawsuit was brought by Kelli," say "Kelli brought the lawsuit," or better yet, "Kelli sued [whoever]." Set the verbs free! Let them work! That is the subject of another lesson, I know.

[Jim Nicklaus]

I was about to comment on the active voice point when I read the above comment, which led me to a different comment. Word choice is also important, so why did "car" become "vehicle" in the revised sentence? I have heard a judge comment that "normal people drive cars, but lawyers drive vehicles."

It sounds like I'm picking on Mr. Peterson, and I don't mean to be. We all have our writing weaknesses, and I know I am as guilty as any other lawyer of overusing the passive voice, using words that are "only heard in court," and using twelve words when one would do. The only way to avoid these problems are to practice, practice, practice your writing (including edit, edit, editing it thoroughly) and to let someone else look it over with a fresh eye to point out the little things you missed.

[Beldar]

And of course there's the "effective advocate's way" of writing the same sentence:

Kelli Smallwood is here in court in her wheelchair today, seeking justice from the Illinois Central Railroad because one of its 40-ton locomotives barreled through an unguarded roadway intersection two years ago -- never blowing its horn, never pausing as it smashed her Toyota Celica into bits of scrap metal that it strewed along the next 300 yards of railbed.

[Tony]

Your entire article comments on the "wrongness" of a sentence. However, one of the very first sentences in support of your argument contains a usage error. "To start with a seemingly small matter, why is the locomotive is the subject of the sentence? - "IS" should be deleted.

Just a thought....