This post is the first in a series on legal writing. I suspect that what follows in the next few days will be contrarian and controversial.
When I started law school, I thought I was hot stuff. I majored in English in college. I knew a bunch of fancy literary terms as well as the names of French deconstructionist critics. I completed an honors project in English and graduated at the top of my class. To make things worse, I completed a masters program. And I finished up that experience with yet another honors program. I was at the top of my game — or so I thought.
Then I went to law school and attended my legal research and writing class. The teacher had written on the marker board “Bored and Busy.” She explained that these words described the average reader of legal writing. Judges are bored and busy, she said. She advised that we write with this audience in mind. I shrugged my shoulders. My view of judges was from the movies. I thought they were all scholars with robes. I had not yet met any of them.
My first assignment was a memo, written to a fictitious supervising partner in a law firm. The subject was whether a person could recover a judgment for damages in North Carolina for a dog bite while on the job (I’m thinking the plaintiff was a delivery man) for big money in a traditional lawsuit or were damages limited only to what was available in worker’s compensation. How simple was this? I’d written about whether true friendship was better than romantic love. I had even written about the epistemology of writing itself. Dog bites? Worker’s compensation? Please! I turned in the same sort of academic prose that had won acclaim among faculty for years
Then my teacher returned my graded paper. There were more words in red ink on the page than typed words from me. And the words in the margin were kind of mean. The phrase I remember was “pseudo-lawyer mumbo jumbo.” Those words on the board were still there “Bored and Busy.” It took a semester for me to catch on. The reader, just about any reader, is busy. And the reader is bored. When lawyers write to other lawyers, they are looking for an answer to a question. And when lawyers write to judges, they are trying to figure out what do to with some problem.
Nobody cares how big your vocabulary is. Nobody cares what your grades were in school. Also, unless you are auditioning for somebody’s team for trivia night, nobody cares how much you know. I started writing at the sixth-grade level, even if I knew that my audience was learned. Why not write to impress? Because your reader doesn’t have time to be impressed or to parse out what you are saying. The reader is busy. And why not write more to really drive your point home? Because the reader is bored.
Fast forward two years. I went to work as a third-year law student in a busy criminal defense firm. The lawyer I worked for was farming out the legal writing to a former associate of his who had moved to the North Georgia mountains. My boss was quite the trial attorney, but his appellate practice wasn’t doing so well. I read some of the briefs that were getting filed. Those briefs were heavy on Latin phrases and legal inactions, “comes now,” “This Most Honorable Court” and such things were all over the place.
I asked to take a shot at a brief. I wrote at the sixth-grade level. My brief was about half as long as the average that this firm was putting out. My brief led to the reversal of murder conviction. All of that was likely beginner’s luck. But it didn’t hurt that I got to the point and took it easy on the busy and bored reader. This isn’t just a law thing. Anybody you write to — the person reading your article, text, tweet, or post — is bored. And anybody you write to is busy; if they aren’t busy, they perceive themselves as such. When is the last time you asked someone if they are “staying busy” and heard in response, “nah, I’m just hanging around?”
Just to give you some perspective, the Opinion Section of the New York Times is written on the tenth-grade level. ESPN writer Rick Reilly, who is considered a great columnist, consistently writes on the fifth-grade level. Compare that to Tucker Wyatt, a seventh-grader who once wrote for Sports Illustrated for kids. His writing was on the seventh-grade level. Let’s talk authors. Ernest Hemingway — fourth grade. David Foster Wallace — eight. Stephen King — sixth. And Thomas Pynchon — seventh.
When I say grade level, this isn’t about dumbing things down. Don’t condescend to do your reader. Rather, it’s about making your writing readable and relatable, particularly to an audience that is busy and bored. Just don’t tell judges that your briefs are at the sixth-grade level. And if your opponents are writing to impress, be sure to encourage them