CBA Record Sept. 2016

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NOTA BENE
BY KATHLEEN DILLON NARKO
T his summer the legal profession
lost one of its most influential
voices for clear writing, Richard
Wydick. Wydick is best known for his
short book, Plain English for Lawyers
(Carolina Academic Press, 5th ed. 2005),
said to be the best selling law book with
more than 1 Million copies sold. Wydick
set out to write something for lawyers that
was the equivalent of Strunk and White’s
classic, The Elements of Style. His book has
remained relevant and popular for nearly
40 years.
Plain English for Lawyers grew out
of a 1978 article by the same name (66
Cal. L. Rev. 727 (1978)). Wydick wrote
the article while on sabbatical in New
Zealand. He said he needed a “portable”
project. According to Wydick, his dean
“sort of smirked and said, ‘Well, go ahead
young man, and give it a try,’ and sent
me off with two-thirds of a salary to New
Zealand to write my Strunk and White.”
(Undated University of California at
Davis video,
watch?v=aBQ4_pge0HA). The article
became popular, and Carolina Academic
Press published an expanded book version,
now in its fifth edition.
As a professor and consultant, I have
recommendedWydick’s book for years. He
diagnosed common legal writing problems
and told readers how to fix them. He fol-
lowed in the footsteps of David Mellinkoff
and joined other advocates of plain English
such as Bryan Garner, Joseph Kimble, and
Wayne Schiess. I highly recommend Plain
English for Lawyers, as well as works by
these authors, to make your legal writing
more clear and concise.
How to Write Better
Following Wydick’s guidance and practic-
ing his exercises will make you a better
writer. The best tribute to Wydick is to
remind ourselves of some of his lessons.
Omit surplus words
Wydick’s first and probably most impor-
tant advice is to “omit surplus words.”
Trimming the fat from your writing is a
key first step in writing well. Although
the phrase is not exclusively Wydick’s idea
(think “omit needless words” from Strunk
and White), it takes on added meaning in
the legal setting. In addition to creating
clear and concise writing for your clients
and judges, omitting surplus words will
help meet word-count or page limits more
easily. The beauty of Wydick’s book is
that it provides concrete ways in which to
identify and cut out surplus words. These
include:
Avoid Compound Constructions: Spot
these when you see three or four words
doing the work of one or two words. Some
examples:
Compound Simple
at that point in time then
for the purpose of to
in accordance with by, under
with reference to about, concerning
(All examples fromWydick, Plain Eng-
lish for Lawyers)
Compound constructions “suck the
vital juices from your writing,” according
toWydick. “Every time you see one of these
pests on your page, swat it.”
Avoid Word-Wasting Idioms: Often we
use phrases that add nothing to the mean-
ing of sentences. Train yourself to trim
these phrases.
Verbose Concise
despite the fact that although, even though
in some cases you will
find
often you will find
in the majority of in-
stances the grantor will
usually the grantor will
Prefer the active voice
In active voice the subject of the sentence
is the actor, e.g., “the plaintiff filed a
motion.” In passive voice, the subject is
acted upon, e.g., “the motion was filed by
the plaintiff.” Sentences in passive voice are
generally longer and can be ambiguous, as
the examples below demonstrate.
Passive Active
Our conclusion is sup-
ported by the legislative
history.
The legislative history
supports our conclusion.
The trust had not been
intended by the trustor
to…
The trustor had not in-
tended the trust to…
After 180 days, this
Agreement can be ter-
minated
Either party can termi-
nate this Agreement
after 180 days.
Sometimes a writer may choose to use
passive voice–where the actor is unimport-
ant, unknown, or where the writer intends
to hide the actor’s identity. For example, “The
subpoena was served on January 19” (actor
unimportant); “The data files were mysteri-
ously destroyed” (actor unknown); “The
plaintiff’s teeth were knocked out” (inten-
tionally hiding the identity of the actor).
RICHARD WYDICK (1937-2016)
Better Writing With Plain English
for Lawyers
Kathleen Dillon Narko teaches
teaches Communication and
Legal Reasoning at Northwest-
ern/Pritzker School of Law and
is amember of the CBARecord
Editorial Board.
52 SEPTEMBER 2016