Easy Wading (or A Fly Angler’s Guide to Clear Legal Writing)

In a familiar stretch of my favorite trout stream, there’s a spot where a series of boulders complicates the river’s flow. When the water reaches those boulders, they disrupt and deflect its flow, and turbulence increases in the boulders’ wake. From the scientific literature, I gather that this intensified turbulence results from horizontal vortexes.

If all that sounds a bit daunting, it is. Each time I approach this stretch, I pause, chart my path, and wade with extra care. I work hard to earn those ten yards of river, and my wading staff is a godsend.

But once past that challenging stretch, I find myself wading, once again, in a clear, smooth-flowing stream. The water glides over a bottom of pebbles, and the wading takes little more effort than strolling up a gravel driveway. My focus returns to identifying trout holds and making accurate casts.

The Power of Pebbles

Ground your legal writing on pebbles, not boulders. Let your ideas flow freely, without patches of needless turbulence. The law is complex, as are the facts of your cases. So the last thing you want is a series of boulders forcing readers to slog upstream with difficulty.

For instance, a commenced an action against boulder should be a sued pebble. An effectuated legal service upon boulder should be a served pebble. A pursuant to boulder should be an under pebble. And so on. When reading your drafts, try both styles and compare the flow. You’ll soon find that pebbles build a stronger document than boulders do. Your writing will start to resemble the prose found in the clearest appellate-court opinions.

To test these waters, let’s wade through a passage I found in a federal court opinion. Notice how its flow is obstructed by inflated terms and wordy phrases, all intensified by passive voice and repetitiveness:

Due to the fact that there has been a clarification by the United States Supreme Court of the applicable law in actions brought pursuant to 42 U.S.C. § 1981 subsequent to the commencement of the present action, and the filing of the defendant's motion at issue, the case of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) as applied to the current facts at issue, will be addressed at the outset.

If we replace the boulders with pebbles, the passage flows more freely and clearly:

Because the U.S. Supreme Court clarified the law for § 1981 suits after this case began, and after the defendant filed this motion, I will first address how Patterson v. McLean Credit Union, 491 U.S. 164 (1989) applies here.