The Importance Of Having A Technically Perfect Document

Technology columnist Jeff Bennion identifies a helpful resource for improving your legal writing.

Several years ago, I was working on the defense side of a large complex litigation case out of Los Angeles. Most of the plaintiffs were represented by one of the big L.A. plaintiff’s firms with lots of staff and resources. A handful of the plaintiffs were represented by small firms or solo practitioners with few staff and few resources. The difference in the pleadings we received from each firm was immediately apparent. One small firm had errors on almost every document – the caption would be a notice of deposition, but the footer would say “Answer to Cross-Complaint.” The case numbers would be wrong. The text would not match with the numbers down the side of the page. There would be a number of other issues we would regularly see that would set off my OCD alarms.

The bigger problem (for them) was that the quality of the legal arguments often matched the quality of the formatting of the document. Over the years, I’ve noticed this is often the case. My theory is that where a document is technically ugly, it was often rushed, and rushed documents often have rushed arguments. It’s not a 1:1 correlation, because there are a lot of law and motion wizards who make great arguments, but don’t know how styles work in Word, and there are a lot of half-baked arguments drafted by young associates who work in a firm with a word processing department. But I have noticed a correlation between documents that look like the formatting was rushed and documents that read like the legal arguments were rushed.

Now, imagine that you are a judge and you have several thousand active cases in your department and you spend a good deal of your day reading pleadings. Let’s assume you have 15 items on calendar for the next day and you are reading hundreds of pages of pleadings to get ready for the hearings. The pleadings for the first 6 or so look fine. You get to the next one and it’s ugly and looks like it was drafted in a rush. Before you even get to the legal arguments, you are going to be slightly prejudiced against the author because you have noticed that a lot of the pleadings that you read that look ugly also contain rushed arguments. You develop a slight bias against that attorney before you even begin. We know from studies in cognitive science that the judge will then focus on things to nitpick in your pleading.

The Importance of Clear Writing

Some time ago, lawyers decided that the only way anyone can know for sure that they are smart or serious is if they write extremely long sentences with words that only lawyers use. There is also a pervasive belief that more is more. This is evident in attorneys’ love for defining everything that is referenced more than once in a document. For example, you won’t find any other profession of paid writers whose members regularly write something like this: “Jane Smith, Plaintiff in the above-captioned action (hereinafter “PLAINTIFF”), was exiting her vehicle, a 2005 Toyota Camry, license plate XXXXX, VIN no XXXXX (hereinafter “THE VEHICLE”),” instead of saying “Plaintiff got out of her car.” Believe me, there are probably very few incidents where the judge has seen the word “Plaintiff” and wondered, “Wait, do they mean the plaintiff in the above-captioned action, or the plaintiff in one of my other cases? I have so many plaintiffs in my cases, how do I know which ‘plaintiff’ they are referring to? Motion denied.”

Here is another example of someone who was probably pretty proud of drafting something that sounds important. Behold, 26 U.S. Code § 509(a):

For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501 (c)(4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501 (c)(3).

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Imagine that is a provision in a contract or a settlement agreement or an asset transfer agreement. The problem is not just whether a jury would agree with your interpretation if the matter were to be litigated. It’s also about whether the parties (including your client) have a clear understanding of their rights and obligations, or are they going to need to go back to counsel multiple times during the pendency of the agreement for clarification. Try getting that client back as a repeat customer.

Legal Style Guide

Adobe has created a legal style guide full of drafting conventions, formatting tips, and substantive grammar tips for use in their legal department. They have made it available for free for everyone to use under a Creative Commons License. The download link is at the end, but here are some highlights:

The above-referenced Legal Style Guide (hereinafter “THE GUIDE”) is broken down into a brief section on the principles of clear writing:

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A section on improving the look of your document:

And a section on the substance of your document:

Here is the link to the download page.

Check it out. It’s only 30 pages, and it’s full of several helpful hints on legal drafting.


Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by email at jeff@trial.technology.

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