Legal writing isn't what it should be #4
Lawyers rely on precedent documents that are often poorly written.
If, as I say, legal writing is not what it should be, then when we rely on a previous document, we are often relying on something that is not well written. And I'm not talking only about transactional drafting here. Many lawyers rely on forms for letters, court documents, and other types of nontransactional documents.
Why do lawyers use forms (or “templates” or “precedent documents” as some prefer to call them) ?
To save time, to save money, to give clients a better value, and to take advantage of previous documents that have worked.
So forms are a necessity. No lawyer can get by in a typical practice today without them. The time and expense that would result from writing everything from scratch would be enormous. But forms have at least four drawbacks.
First, forms foster haste and laziness because they can be used so easily. David Mellinkoff said that “[t]hey are a quick, cheap substitute for knowledge and independent thinking.” David Mellinkoff, Legal Writing: Sense and Nonsense 101 (West 1982). For example, if this transaction seems the same as a previous transaction, the form from the earlier transaction can be converted to a draft for this transaction very quickly. It really is just a matter of changing the names and the dates. But just because it can be done quickly does not mean it should be. The belief that a form can be quickly adapted to a new transaction isn't wrong, but it produces a sense of ease—often a false one. That sense of ease is one of the biggest drawbacks of forms. It contributes mightily to poor legal writing.
Second, forms often contain outdated language and formats. A cardinal rule: you might trust the form to be right on the law or the necessary terms, but you shouldn't trust the form to be well drafted. According to Thomas Haggard, “[t]he best thing about [form] books is often not the language they suggest for specific provisions (which is usually atrocious), but rather the factual checklists they contain.” Thomas R. Haggard, Contract Law From a Drafting Perspective 10-11 (West 2003). In truth, forms are notorious for wordy, archaic usage and excessive formality. More bad legal writing.
Third, forms often contain language and provisions created by several different writers. The result is a patchwork of styles. That may not seem such a terrible thing in a genre of writing that Kimble says is supposed to be “devoid of any writer’s voice.” Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39, 52 (2002). But the problems run deeper than voice: “[V]erbatim inclusion of a clause lifted from someone else's document can and will create anomalies of style that not only offend the artistic sensibilities . . . but frequently lead to confusion and ambiguity.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 16–17 (Michie Co.). The result, again, is bad legal writing.
Fourth, forms often contain unnecessary terms, irrelevant language, and problems of accretion. In other words, as Howard Darmstadter says, lawyers never seem to cut language from a form; they only add: “Forms tend to grow by accretion, with many persons adding paragraphs and clauses without much understanding of what has gone before. The result is frequently a form whose numerous intricacies and subtleties are invisible to all sides.” Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 28 (ABA 2002). Besides, the form gets longer and longer and the writing gets worse and worse. Bad legal writing.