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Simple Legal Writing a Newfangled Idea? Hardly.

Wednesday, November 14, 2012 20:41

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(Before It's News)

In response to last week’s column, a reader lamented:

It seems that the current generation is striving to become far simpler than any previous generation could possibly aspire to be.

Really?

Does the “current generation” of legal-writing Snoots advocate a simple, direct writing style simply to rebel against previous generations of legal writers and their affinity for ten-dollar words?

Absolutely not. And for proof that a simple, direct writing style isn’t a newfangled idea, we need only consult some well-known 19th- and early-20th-Century writers and Supreme Court justices.

The Asiatic and Attic Literary Traditions

In The Elements of Legal Style, Bryan Garner explains that two distinct Greek and Roman literary traditions have influenced Western prose style.

The Asiatic prose style—also called the “grand style”—is “a florid oratorical style [that] sports elaborate antitheses, complicated syntax, and correspondences in sense and sound.” John Milton, Samuel Johnson, Edmund Burke, and William Faulkner claimed—in varying degrees—the mantle of the Asiatic style.

In contrast to the Asiatic style, is the Attic style. The Oxford Encyclopedia of Rhetoric describes the Attic style as “a plain and unadorned style of composition.” Garner similarly calls the Attic style a ”refined conversation: concise, restrained, shorn of intricacy.”

19th-Century Atticists: Spencer and Thoreau

In 1852, the British writer Hebert Spencer published Philosophy of Style. Spencer’s formalist approach to good writing was grounded in simplicity and directness.

Spencer wrote that the ideal writer “present[s] ideas that they may be apprehended [by the reader] with the least possible mental effort”:

Regarding language as an apparatus of symbols for the conveyance of thought, we may say that . . . the more simple and the better arranged its parts, the greater will be the effect produced. . . . A reader or listener has at each moment but a limited amount of mental power available. . . . Hence, the more time and attention it takes to receive and understand each sentence, the less time and attention can be given to the contained idea; and the less vividly will that idea be conceived.

Across the pond in 1854, two years after Spencer’s Philosophy of Style, the American writer Henry David Thoreau published Walden.

As William Zinsser points out, Walden—which Thoreau took eight years and seven drafts to write—is a model of “plain and orderly” prose. Here’s one passage that derives its beauty from its simplicity:

I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived.

20th-Century Atticists

In the early- to mid-20th Century, several well-known American and British writers wrote in or advocated writing in the Attic style:

Ernest Hemingway: Kenneth S. Lynn noted that Hemingway’s simple, direct style was the product—at least in part—of his early literary influences, including his 1920s Paris mentors Gertrude Stein and Ezra Pound. Hemingway’s simple prose style was a stark contrast to the Asiatic style of his literary peer Faulkner; in fact, the two men traded barbs about who had the better writing style.
David Lambuth: In The Golden Book on Writing, Lambuth, a Professor of English at Dartmouth between 1920 and 1948, advocated a style of “Simple Words for Big Ideas”: “Don’t try to seem learned or profound by using long or unfamiliar words. . . . [L]iterary English does not demand a stiff, stilted Latinistic vocabulary. It demands the simplest words, the most familiar words, the most concrete words consistent with accurate expression and good every-day usage.”
Robert Graves: In 1943, the British poet Graves and Alan Hodge published The Reader Over Your Shoulder. As Gorham Munson noted in 1949, The Reader Over Your Shoulder was a “war against ‘officialese’ as the cumberous, unreadable prose of government documents,” and it advocated “a standard serviceable prose that will impart information clearly, securely, and speedily.”
George Orwell: In 1946, Orwell published Politics and the English Language, in which he railed against “dying metaphors,” “operators or verbal false limbs,” “pretentious diction,” and “meaningless words.”
Ayn Rand: In The Art of Nonfiction, a compilation of Rand’s lectures in 1969, Rand explained why big words didn’t equal good style: “Don’t use a ‘seventy-five-cent word’ where a two-syllable word will do. Memorizing the more obscure parts of the dictionary is not erudition; and erudition (or the desire to show it) is not part of style. The simpler words, the better.”

Oliver Wendell Holmes: Rat Holes and Fluffy Writing

In addition to the contributions to the Attic style by Supreme Court Justice Robert H. Jackson during his 1941-1954 Supreme-Court tenure, the opinions of Justice Oliver Wendell Holmes, Jr. between 1902 and 1932 show how lawyers can effectively use the Attic style in their legal writing.

Justice Holmes was known for his plain, conversational style in an era characterized by legal writing that was anything but. Garner, for example, notes that Holmes’s opinions effectively used “rhetorical devices such as alliteration, metaphor, and periodic sentences to emphasize his points.”

But Justice Holmes’s flowing, sometimes whimsical style wasn’t always embraced by his fellow justices. Garner recounts that former President and Chief Justice William Howard Taft called out Justice Holmes for writing in an opinion that amplifying a statute would “stop rat holes” in it. Holmes’s retort to Taft’s umbrage was to blame the Supreme Court’s dullish opinions on the anachronistic notion that “judicial dignity required solemn fluffy speech, as, when I grew up, everybody wore black frock coats and black cravats.”

Like the contrasting styles of Hemingway and Faulkner, the distinctly Attic style of Holmes’s legal writing differed sharply from the Asiatic style of Justice Benjamin Cardozo, who President Roosevelt appointed to the Supreme Court in 1932, the year of Holmes’s retirement at the age of 90.

If you admire Holmes’s style, you need not pour through law-school casebooks for contemporary examples of it. Holmes’s style continues to find its voice in the witty, sometimes-biting opinions of jurists such as Antonin Scalia, Bruce Selya, Richard Posner, and Alex Kozinski.

Simple, Direct Prose Style Is No Recent Invention

The discussion above, of course, isn’t a comprehensive treatment of the influence of the Attic style on 19th- and 20th-Century British and American literature and law. But what it does do is smash the silly notion that writing simply and directly is a newfangled idea.

Most mortals will never be able to master the complicated Asiatic style of a Cardozo, a Milton, a Burke, a Johnson, or a Faulkner. Indeed, when most lawyers try their unskilled hands at writing in the Asiatic style the result isn’t stylistic perfection—it’s usually dense, obscure gibberish.

The Attic style, though, offers even mediocre legal writers the chance to be persuasive. So lawyers shouldn’t fret if somebody questions why their writing is so simple and direct. The Attic style has a storied history in British and American literature and law. And we shouldn’t be shy about recognizing it by emulating it.

(photo: http://www.flickr.com/photos/politicalgraveyard/3572525672/)