3.2 Composition, Plain-English Principles & Concise Legal Writing

3.2 Composition, Plain-English Principles & Concise Legal Writing

[!IMPORTANT] Judicial Mandate for Plain English: Both federal and state judiciaries have systematically rejected archaic legalese. The restyling of the Federal Rules of Civil Procedure in 2007 established that legal drafting must be simple, clear, and direct. Busy trial and appellate judges routinely penalize verbose, impenetrable writing, making plain-English drafting an indispensable paralegal skill.

For centuries, legal writing was dominated by dense, convoluted phraseology inherited from Middle English, Norman French, and scholastic Latin. Legal practitioners mistakenly believed that archaic terminology added solemnity, precision, and authority to their work. In modern litigation and transactional practice, the opposite is true: convoluted drafting obscures meaning, increases client costs, frustrates judicial review, and frequently leads to costly litigation over syntactical ambiguity.

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The Plain-English Philosophy: Clarity as a Duty

Plain-English legal drafting does not mean oversimplifying substantive legal doctrines or writing in colloquial slang. Rather, it means expressing complex legal concepts with maximum clarity, economy, and precision. Every sentence in a pleading, contract, or memorandum must be drafted so that it cannot be misunderstood.

The core tenets of plain-English drafting include:

1. Favoring active voice over passive voice so the actor performing the legal act is instantly identifiable.
2. Purging archaic legalese and Latinisms that serve no specialized substantive function.
3. Unsmothering nominalized verbs to restore momentum and vigor to the narrative.
4. Pruning redundant couplets and triplets that repeat identical legal meanings.
5. Structuring documents visually with white space, informative point headings, and concise paragraphs.

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Purging Archaic Legalese

Archaic words like heretofore, wherefore, and inter alia are legal boilerplate that adds clutter without adding legal substance. When drafting legal instruments, replace these linguistic relics with direct modern terms:

CONVOLUTED: The aforementioned Defendant did heretofore fail and refuse to remit said payment.
PLAIN ENGLISH: The Defendant failed to make the payment.

CONVOLUTED: Prior to the commencement of the deposition, counsel conferred inter alia regarding exhibits.
PLAIN ENGLISH: Before the deposition began, counsel conferred about exhibits, among other matters.

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Unmasking and Eliminating Nominalizations

A nominalization (often called a "smothered verb") occurs when a dynamic action verb is converted into an abstract, multi-syllabic noun, usually requiring a weak auxiliary verb (such as make, give, conduct, effectuate) and extra prepositions (such as of, in, to).

Nominalizations rob legal prose of its energy, increase sentence length by 30 to 50 percent, and conceal who is doing what.

NOMINALIZED: The committee reached a conclusion that the policy was unconstitutional.
ACTIVE VERB:  The committee concluded that the policy was unconstitutional.

NOMINALIZED: Plaintiff made an application for the issuance of a protective order.
ACTIVE VERB:  Plaintiff applied for a protective order.

High-Frequency Legal Nominalizations

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Pruning Redundant Couplets and Triplets

Many classic legal expressions consist of two or three synonymous words strung together with and or or. These phrases originated following the Norman Conquest of England in 1066. To ensure comprehension across both the conquered Anglo-Saxon populace and the Norman French ruling class, English scribes paired an Old English word with its Norman French or Latin equivalent.

Over centuries, this bilingual necessity hardened into mindless legal habit. In contemporary drafting, these couplets and triplets create linguistic bloat and provide zero additional legal protection:

• "Null and void" $\rightarrow$ Void (If a provision is void, it has no legal effect; "null" adds nothing).
• "Cease and desist" $\rightarrow$ Stop or Cease.
• "True and correct" $\rightarrow$ Accurate or True.
• "Give, devise, and bequeath" $\rightarrow$ Give (Historically, devise governed real property and bequeath governed personal property; modern statutory probate codes recognize give as conveying all testamentary property).
• "Indemnify and hold harmless" $\rightarrow$ Indemnify (Unless local case law distinguishes between defending against third-party liability and absorbing direct loss, in which case the agreement should explicitly define both duties).
• "Free and clear" $\rightarrow$ Unencumbered or Free.
• "Full force and effect" $\rightarrow$ Effect or Remains in force.
• "Made and entered into" $\rightarrow$ Entered into or Made.

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Precision in Defined Terms

Defined terms are essential tools for precision in lengthy briefs and commercial agreements, but improper drafting creates traps for the reader. Paralegals must follow strict defined-term protocols:

1. Define on First Mention: Introduce the defined term immediately following the full proper name in parentheses and quotation marks: "XYZ Logistics, LLC ('XYZ')" or "(the 'Company')".
2. Eliminate Clutter Boilerplate: Never write "hereinafter referred to as XYZ" or "hereinafter called the Tenant". The parenthetical quotation mark accomplishes this automatically.
3. Avoid the Single-Use Trap: Never define a term if the entity or concept is mentioned only once or twice in the entire document. A defined term is justified only when repeated frequently.
4. Never Create Circular Definitions: A definition must clarify scope, not repeat the defined word ("'Confidential Information' means information that is confidential" is useless; specify exact categories of proprietary data).
5. Maintain Capitalization Uniformity: Once defined, the term must be capitalized consistently throughout the remainder of the document. Reverting to lowercase implies a generic, non-defined meaning.

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Visual Typography, White Space & Persuasive Headings

A judge or senior partner does not read a legal filing like a novel; they scan, analyze structure, and search for operative legal points. Visual architecture determines whether a document is persuasive or exhausting.

Transforming Topic Headings into Persuasive Point Headings

Legal briefs and memoranda must never use vague, neutral topic headings. A point heading must be a complete declarative sentence that synthesizes the legal principle with the dispositive facts, compelling the court to agree with the client's position:

WEAK TOPIC HEADING:       Statute of Limitations
DESCRIPTIVE BUT NEUTRAL:  Defendant's Motion Under Ohio Rev. Code § 2305.10
PERFECTION (POINT HEADING): The Court Must Dismiss Count I Because Plaintiff Filed This
                           Negligence Action Three Years After the Accident, Exceeding
                           the Two-Year Statute of Limitations Under Ohio Rev. Code § 2305.10.

Formatting Rules for Heading Hierarchies and White Space

• Tiered Outline Hierarchy: Use standard legal heading tiers:
  • I. MAIN LEGAL PROPOSITION (ALL CAPS, BOLD)
  • A. Major Sub-Argument Supporting Proposition (Initial Caps, Bold)
  • 1. Specific Factual/Legal Element (Indented, Regular Text or Italics)
• The White-Space Rule: Keep paragraphs between three and seven sentences. Avoid "walls of text" exceeding 15 lines. White space between headings and sections allows judicial eyes to rest and highlights critical arguments.