B. Why Lawyers Write Like Lawyers

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 341-342

Page 341

It is, of course, an indispensable part of a scrivener’s business to verify the accuracy of his copy, word by word. Where there are two or more scriveners in an office, they assist each other in this examination, one reading from the copy, the other holding the original. It is a very dull, wearisome, and lethargic affair. I can readily imagine that, to some sanguine temperaments, it would be altogether intolerable.

- Herman Melville, Bartleby, the Scrivener

Page 342

What does it mean to say that lawyers write "like lawyers"? Unfortunately, the impression that some non-lawyers have is that lawyers tend to use too much gobbledygook (or "legalese") when they write and speak. There are several reasons why this has been so. Perhaps the main reason is that lawyers have traditionally been quite conservative, relying upon "tried and true" past precedents.¹This can sometimes be a good thing since it ensures consistency and safe practice. The problem, however, is that many older precedents used archaic language, Latin phrases, notoriously bad legalese ("the Defendant struck the said car"), and redundant expressions or "freight trains" (for example, "null and void" - using void alone is sufficient).²Since scriveners were often paid by the number of words they transcribed, there was little incentive for brevity and every motivation to be as wordy as possible, as would have been the case with Melville’s Bartleby.

Combined with these factors is the very essence of lawyering - trying to anticipate every possible scenario or risk by "crossing every ‘t’ and dotting every ‘i’ " when drafting legal documents. This is not always a bad thing but can sometimes be unnecessary, especially when it is being done unconsciously when lawyers are blindly copying past precedents.

Another reason why lawyers write like lawyers is the monopolistic nature of the legal profession and its perceived elite nature. Lawyers were seen to belong to an exclusive, upper-class "club" that did not include the "unlearned" among its members. The very use of legal...