I’ve written a lot about the benefits of writing in plain legal English. Not only for your clients but just as importantly for the reputation and success of your practice.
But you also need to consider what can go wrong if you don’t write in plain legal English. Of all the pitfalls of poor legal language, few are as sobering as a ‘benchslap’ – getting metaphorically slapped down by a particularly salty judge.
Let’s look at this colourful legal term (yes, it has made its way into the 11th edition of Black’s Law Dictionary!) and ten tips for avoiding the ego-bruising effects of the infamous benchslap.
What is a benchslap?
Lawyer and author David Lat coined the term ‘benchslap’ (although with a hyphen) in a 2004 post on his pseudonymous blog, ‘Underneath Their Robes’. It’s a play on words on the derogatory term ‘bitch-slap’: to slap someone across the face to humiliate them or assert dominance (often used figuratively).
‘Benchslap’ describes how a judge delivers a strong or demeaning admonishment to counsel, a litigant, or sometimes even another judge. Lat’s second site, the legal gossip blog ‘Above The Law’, keeps a record of particularly notable benchslaps. They make for eye-opening and often entertaining reading!
Whack, you’ve been benchslapped!
So now you know what benchslaps are, let’s consider how they relate to writing in plain legal English.
A good way to avoid benchslaps is by honing your writing game. In a 2014 paper for Brooklyn Law School, Heidi K. Brown wrote:
“Law-firm hiring partners often remark that many new lawyers do not yet know how to write well … Benchslap opinions demonstrate that, for many lawyers, a laissez-faire approach toward legal writing can unfortunately continue beyond law-school graduation”.
And it’s not just newbies who fall foul of the proper standards of plain legal English. Brown notes that “attorneys who have been practicing law for decades represent some of the more egregious offenders”.
Brown cites a case, Ochoa v. Cook County Sheriff, in which the plaintiff’s attorney submitted a brief (in response to a motion to dismiss) described as “poorly written and virtually unintelligible”. On the same day, another lawyer’s brief was called “almost unintelligible”, “wretched”, and “incoherent”. The judge threatened monetary sanction, censure, suspension, and even disbarment:
“Judges are better able than clients to separate competent from bungling attorneys, and we have a duty to ensure the maintenance of professional standards by members of our bar”.
Backhanded complements (pun intended)
If you don’t want to be on the receiving end of a benchslap, you also need to follow the rules for written submissions. In one benchslapping incident, a boutique law firm tried to evade page-count limits by ignoring a local rule that all documents should be double-spaced. This formatting sleight-of-hand caused an open-handed rebuke. The judge ordered the firm to resubmit a rule-compliant brief and state the filing cost – he then fined them the same amount!
Using clear, concise, and compelling legal English will help you dip under page-count limits. Below are ten ways that will make an immediate difference to your legal writing.
10 plain legal English tips
To avoid the humiliation of the dreaded benchslap, here are my top ten plain legal language tips that will make you, let’s say, unbenchslappable:
- Plain language is about more than wording; it also covers structure and design. Using headings, subheadings, and lists can significantly aid understanding. Break up walls of text and keep your reader engaged. Make sure your legal documents aren’t synonymous with a snoozefest.
- Don’t confuse legalese with terms of art. By their definition, we cannot replace genuine terms of art. But legalese is opaque legal writing that often hides behind flawed terms of art. It’s the 2020s, for goodness sake. We need to strap legalisms like ‘pursuant to’ and ‘hereinafter’ to the outside of a rocket and blast them into space beyond the reach of gravity. It takes no skill to drop lazy words like this into your legal writing or translations, so stop using them as a crutch. They’re mere potboilers for the legal profession. They don’t sound clever. And they certainly don’t make you seem clever.
- Make the active voice your default. But don’t banish it altogether like some plain-language enthusiasts advocate. The passive voice is sometimes acceptable and even preferable in legal writing. This one-minute video walks you through five cases.
- Avoid nominalisations (abstract nouns formed from verbs) and use vivid verbs instead. This bite-sized video shows you how to uncover hidden verbs in your writing. Be sure not to skip Part 2.
- Use shorter sentences (try not to exceed 20 words). Checking to see if you’ve overused the word ‘of’ is a great place to start. And use shorter words where you have a choice.
- Use connectors at the start of your sentences for better flow (yes, for the umpteenth time, you can start a sentence with a coordinating conjunction like ‘or’, ‘and’ or ‘but’). And generally use words of emphasis at the end of your sentences.
- Use pronouns (‘you’, ‘we’, ‘our’), especially for client-facing documents like terms of business, employment contracts, and tenancy agreements. It sounds friendlier and removes unnecessary barriers between the organisation and the reader.
- Decide, once and for all, on ‘shall’, ‘must’, or ‘will’ as your language of obligation in contracts. And be consistent. There’s nothing worse than a legal document peppered with ‘shall’ because lawyers (or legal translators) don’t understand when not to use it. Whether to use ‘shall’ at all is a grey area, so read up on the different opinions out there first. Sarah Fox has an excellent summary of the expert views on her website. If you don’t have time to read up, or are still undecided, use my ‘Rule of 3’.
- Remove sexist language. I refuse to use ‘he includes she’. It doesn’t – it never did – it just serves the purpose of those who insist on it. Keep your eyes peeled for an upcoming blog post on gendered pronouns here, but this excellent article on the singular ‘they’, again by Brown, is a must-read in the meantime.
- Brush up on your punctuation as it can make or break a case. And don’t take everything the experts tell you at face value either. Garner’s take on the Oxford comma is “…its omission may cause ambiguity, whereas its inclusion never will” (Garner’s Dictionary of Legal Usage, 3 ed., p. 731). But that isn’t the case, as this video shows. Don’t choose camps. Choose a default style, consider each case on its merits, and be a comma chameleon instead!
Wave benchslaps bye-bye!
The best way to avoid your legal documents getting you benchslapped is to hire a specialised legal translator or editor to help make your English writing slap-proof.
Not only will this help you get your legal writing fighting fit, but it will also save you time, free up your resources, and guarantee that you win the respect of judges… because gawd help you if you lose it!
Contact me for legal translation, legal proof-editing, and plain-language adaptation. I’ll help you turn benchslaps into high fives!