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 The
Legal Writer #17: The Crucade Continues
By
Judge Mark P. Painter
Perhaps it sounds pretentious to
call pushing for plain language in legal writing a
"crusade," but it makes some sense when we
remember history. Lawyers started writing two words
for one after the Norman Conquest, which was some
years before the original Crusades. We are making
progress—but progress in our profession is slow.
After all, we have been writing badly for more than a
thousand years.
Judges See The Light
The campaign to rid our paragraphs
of the jumble of letters and numbers called citations
has won converts throughout Ohio. Putting citations in
paragraphs, rather than in footnotes, destroys
readability. As lawyers, we have trained our eyes to
"fast forward" past citations, but it is
still difficult, especially where the citations are
long. Another problem is that citations hide bad
sentences and flaws in reasoning.
As for progress—these are cases
from various Ohio appellate courts where citations are
banished to footnotes: State v. Stuber, 150 Ohio
App.3d 200, 2002-Ohio-6309, 779 N.E.2d 1090 (Hadley,
J.); State v. Youlten, 151 Ohio App.3d 518,
2003-Ohio-430, 784 N.E.2d 768 (Kilbane, J.); Good v.
Krohn, 151 Ohio App.3d 832, 2002-Ohio-4001, 786 N.E.2d
480 (Walters, J.); Citicasters Co. v. Bricker &
Eckler, L.L.P., 149 Ohio App.3d 705, 2002-Ohio-5814,
778 N.E.2d 663 (Hildebrandt, J.); State v. Huffman,
151 Ohio App.3d 222, 2002-Ohio-7121, 783 N.E.2d 950
(O'Neill, J.); Bowling v. St. Paul Fire & Marine
Ins. Co., 149 Ohio App.3d 290, 2002-Ohio-4933, 776
N.E.2d 1175 (Winkler, J.); Crystal v. Wilsman, 151
Ohio App.3d 512, 2003-Ohio-427, 784 N.E.2d 764
(Blackmon, J.); State v. Bennett, 150 Ohio App.3d 450,
2002-Ohio-6651, 782 N.E.2d 101 (Sundermann, J.); State
ex rel. Cincinnati Enquirer, Div. of Gannett Satellite
Info. Network, Inc. v. Sharp, 11 Ohio App.3d 756,
2003-Ohio-1186, 785 N.E.2d 822 (Painter,
J.). Delaware and Alaska have adopted the
citations-in-footnote system statewide, and at least
some Texas Supreme Court justices have converted: See,
for example, Derose v. State (Del. 2003), 830 A.2d
409; Riddell v. Edwards (Alaska 2003), 76 P.3d 847; In
re A.V. (Texas, 2003), 113 S.W.3d 355.
We now see plain-language opinions
populating the Northeast Second, Pacific Third,
Southwest Second, and Atlantic Second volumes. The
cases are infinitely more readable than ones with
citations in the text.
The foregoing list is in the text
because the citations are the point, not authorities
for the point. And they are not interspersed within
and between sentences.
Lawyers Also
Lawyers and firms are also getting
on board. Most law firms in the First Appellate
District have converted, along with the county
prosecutor's office. In Cleveland, the Cleveland
Department of Law, under the leadership of director
Subodh Chandra, has converted its entire operation to
plain language.
Many firms have writing programs
and have done in-house instruction on writing plainly.
I see mostly briefs from Cincinnati lawyers, but I am
sure there are many more firms and departments
statewide that have swept citations to footnotes,
forbidden legalese, and stopped using three words for
one. One benefit to me personally — the briefs I get
are so much easier to read than a few years ago.
Cutting It Off At
The Pass
Under the progressive leadership of
Dean Joseph Tomain, the University of Cincinnati
College of Law is seeking to prevent students from
internalizing the bad legal writing to which they will
be exposed in law school — cases, statutes, deeds
— by giving to each entering student two books on
plain language. Law students, many of whom are good
writers when they start, must be told not to be ruined
by reading legal writing and seeking to emulate it.
Perhaps other law schools could follow Dean Tomain's
example.
Still A Battle
Much more needs to be done. I still
see briefs in Courier font, the most difficult to
read. Some lawyers cling to unreadability by putting
citations in paragraphs, using parenthetical
numericals (there is one (1) defendant), including
irrelevant dates, and failing to state the issue up
front.
Some judges continue to believe
that they write only for other judges and lawyers, and
think that we like the "old" ways better.
Most of us don't; most of us like to be able to read a
document. And cases are about people—shouldn't the
parties at least be able to read what is happening to
them? Unfortunately, in Ohio the leadership in plain
language is coming from the ground up, through the
firms and appellate courts, as the Ohio Supreme Court
still clings to jumbling citations in paragraphs. Once
that court follows the lead of the supreme courts in
Delaware and Alaska, and many other courts across the
country, the task for the rest of us will get easier.
____________________________________
Mark Painter is a judge on the Ohio First District Court of
Appeals and an Adjunct Professor at the University of
Cincinnati College of Law. He is the author of five
books, including The Legal Writer 2nd ed.: 40 Rules
for the Art of Legal Writing. The book is available at
Joseph-Beth Booksellers in Cincinnati and Cleveland,
The Book Loft in Columbus, the Ohio Book Store in
Cincinnati, Barnes & Noble in Cincinnati
(Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com.
Judge
Painter has given dozens of seminars on legal writing.
Contact him at [email protected],
or
through his website at www.judgepainter.org.
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