I’ll never forget the time a senior lawyer complained that my writing was easy to understand. He thought I should “write like a lawyer.”
He’s far from being the only lawyer who feels this way. Many lawyers, especially senior lawyers, fail to realize is that opaque prose is not merely an esthetic issue. It is a financial issue.
This is especially true in today’s environment, where businesses are moving faster than ever and the most desirable clients are more inclined than ever to move on from law firms that do not meet their needs. Client retention is very different in this new dynamic.
How can lawyers retain their best clients in this new environment? Seeking out and acting on client feedback and suggestions for improvement is a pretty good place to start.
Poorly written work products make lawyers less attractive to a key pool of clients: C-Level executives. They simply don’t have the time or the inclination to interpret something that reads like Sanskrit or a pretentious Ph.D. thesis.
How can lawyers adapt to today’s client demands for better communication?
- Understand the problem.
- Fix it.
Understanding The Problem
A team of specialists in language and cognition, including an experienced lawyer, analyzed the issue in a Cognition journal article entitled “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.” Their charter was to articulate what makes legal documents “unnecessarily difficult to understand.” Their conclusion?
Contracts, such as online terms of service agreements, are at once ubiquitous and impenetrable, read by virtually everyone yet understood by seemingly no one, except lawyers.
This article received the 2022 Ignoble prize in the Literature category. This prestigious-yet-tongue-in-cheek award recognizes improbable research projects that at first glance appear ridiculous but in fact conceal a genuine thought-provoking purpose. The award receives upwards of 9,000 nominations each year and are presented by actual Nobel Prize winners.
Why is poor legal writing so prevalent? Several reasons: fear, time, and lack of skills.
Fear: Many lawyers who are capable of writing clearly fear that clients would be less willing to pay large fees work product not wrapped in mysterious and incomprehensible legal jargon. If it’s easy to understand, clients may justifiably wonder why they should be paying through the nose for it, right? The reality is that good writing should is more salable, not less.
Time: Time pressure is another culprit. However, many lawyers who could do better and have the time to do are equally guilty.
Lack of Skills: Some lawyers understand the need for improvement but don’t know how to make it happen.
Merely understanding the fear and time issues take you most of the way toward vanquishing them, so let’s focus on solving the lack of skills issue.
Fixing The Problem
I make no claim to being a perfectly clear writer in every brief, every memo. Rather than pretend to be the grand guru of plain English I’ll hand the ball to real experts, the people I listen to:
The Elements of Style, William Strunk and E.B. White
Legal Writing in Plain English, Bryan A. Garner
Plain English for Lawyers, Richard Wydick and Amy Sloan
Let’s close by giving the last word to a senior executive who is the real boss in this situation, the client whose business we need:
You want my business? Don’t waste my time. Tell me what I need to know, fast, in a way I can understand. Not able or willing to do so? I’ll find a law firm that can and will.