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INTRODUCTION (page 5)
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The way some practicing lawyers view themselves provides a second reason primers and courses have failed. For example, many primers and courses urge lawyers to use plain language.32 But these primers and courses:
‘go wrong in suggesting that, if you just tell a lawyer to stop writing like Sir Thomas More, he will. Things are not that simple … For many, jettisoning the ancient formality would mean eliminating what they think defines them as attorneys.’33
Our legal research company, Research One Pty Ltd, encounters this kind of lawyer almost every day. These lawyers think that writing ‘like a lawyer’ means writing like no other group: ‘awkward constructions, musty words … and Latinisms … speckle the page.’34 Lawyers must change their attitudes for primers and courses on plain language to take effect. And changing attitudes takes time.
Lawyers’ shortage of time provides the third and biggest problem for good legal analysis, research, and writing. Litigation involves ‘an endless series of crises and deadlines … Gone are the days, if ever they existed, of reflection on legal points’. 35 So, advice that takes time to apply, or requires care or thought, ‘will be ignored in the rush of events, deadlines, and judicial impatience’.36
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Written advocacy suffers. George Orwell explained in 1946:
‘When you are composing in a hurry … it is natural to fall into a pretentious, Latinized style. Tags like a consideration which we should do well to bear in mind or a conclusion to which all of us would readily assent will save many a sentence from coming down with a bump. By using stale metaphors, similes and idioms, you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself.’37
Worse still for lawyers, you may have no time to think though the next step in your argument. But the deadline forces you on. ‘The result is papering over the gap in logic with the kind of verbal baloney so common in so many pleadings.’38
32 See the sources accompanying Step 10, below.
33 Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.
34 Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 170.
35 Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 171.
36 Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 176.
37 George Orwell, ‘Politics and the English Language’ (1946) 13(76) Horizon 259–60.
38Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167, 172.
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