USLegalWriting.com/blog - Post: "Res Ipsa Loquitur" Forever? I Hope Not.

http://www.uslegalwriting.com/blog/res-ipsa-loquitur-forever-i-hope-not/ Personally, I've never cared for the use of Latin in legal writing.  To my ear, terms like "res ipsa loquitur" and "inter alia" just look and sound pretentious, and I think they interrupt the flow of a legal argument (Who really wants to shift languages mid-thought?).  I also don't favor using "the said" in front of every noun that crops up, and I try not to write "subsequent to" when "after" will do nicely.  These practices just complicate things more than necessary.  For years now some legal writing scholars, including Bryan A. Garner, have been beating the drum for using plain  English in our legal discourse.  Apparently this campaign has had a good effect upon judges.

Dr. Kathy Kellerman, a communications consultant, recently published online a slide show revealing the results of a survey of 800 judges (Flammer, Sean. (2010). "Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English."  The Journal of the Legal Writing Institute, 16, pp. 183-221).  The study inquired whether the judges found plain English or traditional legal writing more persuasive in the memoranda and briefs submitted to them.   The results were telling.  More than two-thirds of the appellate judges surveyed found plain English more persuasive, and 63% of the trial judges surveyed agreed.  Among women judges, the numbers were even more dramatic--83% liked plain English.

This is all good news, it seems to me, and apparently we are moving in the right direction; but it doesn't mean that as advocates we can now just jettison all our latinisms and other traditional verbal baggage.  Our job still is to persuade the judge assigned to our case, today, and that person might not agree with the surveyed majority.

So what to do?  Easy answer:  If you can, read some of your judge's recent writings.  If he or she shows an affinity for the hoary old style, then by all means load up your submission with "the said, "heretofore," "inter alia," and any other burdensome lingo that comes to mind.  If you don't have any clear evidence that your judge favors pretension, leave it alone. Go with plain English. According to Sean Flammer's study, the odds are now with you.

And of course, before I leave this topic I should consider that you might not be among the choir to whom I preach.  Maybe you like the occasional latinism yourself.  In that case I leave you with these thoughts:  A communi observantia non est recedendum.  Translation: There should be no departure from common observance (or usage).  By common usage, I mean ordinary English.  Or maybe this: Acta exteriora indicant interiora secreta.  Translation: Outward acts indicate the thoughts hidden within.  That is, if you persist in the traditional style, you might be telling the reader more about yourself than you want to.

Category:

People & Blogs

Tags:

• legal research
• legal writing
• legal research and writing
• freelance lawyer
• freelance attorney
• contract lawyer
• contract attorney
• legal research service
• legal memorandum
• legal brief
• appellate brief
• legal writing help
• legal research help
• outsource legal research
• outsource legal writing