Legal Writing in Plain English: A Text With Exercises

Bryan A. Garner is leading what might be a Quixotic charge to make lawyers write clear, clean, unambiguous and even interesting prose. This book is a recent addition to the Garner arsenal, which includes the excellent The Winning Brief and A Dictionary of Modern Legal Usage. The anonymous writer from New York who slams Garner is wrong. He claims that traditional legal drafting has stood the test of time and is readily understood by judges, who ultimately have to interpret it. If the writing were clear to begin with, the parties wouldn't get to a judge. They'd likely settle. And that writer ignores the fact that there are thousands, perhaps millions, of legal decisions over contract disputes, almost all arising from documents that were "traditionally drafted." And different judges can decide differently about the meaning of a clause. That writer askes rhetorically whether Garner would insist that mathematicians use prose to make their work clear to laypeople. The rhetoric ignores the fact that mathematics is its own language. Legal writing is written in English, the same English used to buy groceries, talk lovingly to your spouse, and complain to the doctor about what ails you. There is no valid reason a contract should be beyond the comprehension of a layperson, other than lawyers' need to feel like they're elevated professionals with a grip on arcana. And the writer's praise of "Notwithstanding anything to the contrary" as an incantatory phrase in contracts overlooks an obvious improvement: "DESPITE anything in this agreement to the contrary . . . ." Garner is a brilliant, insightful teacher who cares deeply about the language and its highest and best use. We know what happens with legalese: litigation and contention and noncomprehension. Give plain English a try, with Garner as your guide to Aquinas's trinity of wholeness, harmony, radiance, and of course clarity clarity clarity.

EXCELLENT BOOK, ALSO MODERN LEGAL USAGE, 2ND EDITION. ENOUGH SAID.

The point of Garner's book is to write for the reader. This book would be helpful to any lawyer, if only because it forces us to think about how and why we are writing.

Too often, writers treat style manuals as if they were infallible--written on stone tablets by a divine author. Garner's book is not perfect and cannot be applied with a thoughtless rigor. As an appellate lawyer, I generally try to follow Garner's style, but sometimes it doesn't fit.

The corporate lawyer who complained about the book did not read it closely enough. Garner opposes thoughtless attachment to legalese, but he acknowledges that sometimes legal writers have to use terms of art. He also urges writers to be concise. I don't know where the corporate lawyer got the idea that Garner advocates "two pages of easily accessible prose over two sentences of conventional drafting," but it is not from this book.

Accept or reject Garner's advice as you wish, but thinking about clear writing will make you a better lawyer. Most of what Garner writes is common sense, but it's common sense legal writers often lack.

I strongly agree with five of the six amazon.com reviews, which are highly favorable and award five stars. This book is beautifully written, well organized, and eminently sound. Garner tackles the difficult job of convincing staid, inflexible lawyers to abandon the age-old practice of using incomprehensible legalese and thus ensuring that their contracts will have to be translated for those whose lives are affected by them and later interpreted in costly litigation.

Most prestigious lawyers, law firms, and judges strongly favor Garner's plain-language approach to drafting. For example, the late Charles Alan Wright, a brilliant Supreme Court lawyer and noted author, called Garner "the world's leading authority on the language of the law." And the Texas Supreme Court enlisted Garner's aid in redrafting the Texas Rules of Appellate Procedure. So it's hard to believe that judges would generally prefer "conventional drafting" over the clear, accessible language that Garner advocates.

The five five-star reviews of the book on this website came from a law professor, a practicing lawyer, a book reviewer, and two others who appear to be nonlawyers. I wondered if the anonymous New York corporate lawyer who gave the book a meager one star knew something that everyone else didn't. So I checked for reviews from highly respected sources. And I found that Harvard Law Review, the Law Library Journal, and Trial have all published very favorable reviews of this book.

The plain-language drafting recommended in this book is widely viewed as beneficial, not only by nonlawyers, but also by highly skilled lawyers who seek to avoid ambiguity and litigation and who strive to improve the tarnished image of lawyers generally. I believe that Garner's approach would be condemned only by a few rich corporate lawyers who thrive by making themselves indispensable in drafting, translating, and later litigating the long, dense form contracts that they produce.

While the book contains some good advice for beginners, those of us who draft agreements should beware of the dangers of taking Mr. Garner's advice too seriously. Of course legal drafting can be improved, but there are limits, given that ease of understanding isn't the only goal in legal drafting. In short, he lets his stylistic preferences override the need for brevity, clarity and precision, and has taken his case too far. Where a choice has to be made, I vote for conventional legal drafting. Many of his recommendations do not work in the country's most prestigious law firms.

Mr. Garner advises that lawyers should draft in plain English, not for a mythical judge who might be called upon to interpret a provision in the worst-case scenario of litigation. While I am all for clarity, legal draftsmen would be well advised to consider the malpractice hazards of not drafting for a judge. By all means, make your drafting unambiguous and eschew sloppy and overly-complicated formulations, but keep in mind that if there is a question of interpretation, it will be a judge or arbitrator with legal training who will have to resolve it and, whether the judge or arbitrator likes it or not, he or she knows what to do with conventional legal drafting. And I don't seriously believe that a judge would prefer to read three pages of easily accessible prose over two sentences of conventional drafting that, given his or her legal training and experience, can be absorbed in a few seconds.

Put simply, you'd rather have a patent protect your client than have it be understood by a layman. Similarly, you'd rather have to explain a contractual provision to a client than not have it give her the legal protection she has hired you help provide. Would Mr. Garner advise that mathematicians frame their equations in prose, simply because this makes their conclusions more accessible to the nonmathematician? Or that advertisements be written in full sentences?

For example, Mr. Garner begins the book by criticizing the formulation "Notwithstanding anything to the contrary." Although it lacks iambic pentameter, there can be little question of its intent: what follows overrides any conflicting provisions, and you, Mr. Judge, should consider this when one party argues that another provision should prevail. And what's wrong with a well-drafted proviso?

Mr. Garner also ignores the choice between the precision offered by good, but conventional, legal drafting, and the difficulty of achieving that same precision when drafting in plain English. Given the choice, I'd prefer to draft a short, precise, clear sentence than two pages of nattily formatted plain English. At my hourly rates, I suspect my clients would prefer to pay for the former, too.

Finally, Mr. Garner ignores the reality of most legal drafting: it begins with precedent that doesn't conform to his views. Again, given the high cost of quality legal work, it might be worth tinkering with language to make it clearer, but it would prohibitively expensive to completely redraft from scratch a complicated transaction document in the manner he suggests.

Perhaps the most telling point: the book jacket has no endorsements from anyone at a prestigious law school or law firm.

A noble cause, but Mr. Garner writes like an academic without real-world experience.