Lawyers as Explainers: Remember, you are writing for intelligent people
Bryan A. Garner. Photo by Winn Fuqua Photography.
As professional workers with words, lawyers above all must be good explainers. We explain all kinds of things—to clients, colleagues, juries, judges and many others. In that way, we’re similar to journalists, who must explain things—often difficult and subtle things—to their readers. Every generation of lawyers has a lot to learn from their journalistic counterparts.
The basic approach of expert explainers is to say what would need to be said clearly, simply and pleasantly to a small mixed audience of intelligent people. Because expert explainers are exceedingly aware of their audience, they recognize they must pace their ideas, defend their point of view, head off objections, admit and overcome potential weaknesses, explain counterexamples and exemplify their strengths. This type of paced lucidity is a habit of mind that’s gradually acquired through constant practice.
One key mark of a lucid writer is providing necessary context. You say just enough to lend understanding, but you don’t encumber your readers with needless minutiae. Details can either illuminate or becloud. The right ones aid comprehension; unnecessary ones hinder it. Every obstacle you erect between your readers and your thoughts is a defect of style.
You think all this is obvious? It’s not. The qualities we’re discussing here aren’t commonplace. They’re rare.
Many lawyers don’t think about “a small mixed group of intelligent people.” Instead, they might think about various hobbyhorses: “You must begin with a procedural history!” Or: “You must begin with a full statement of the case.” Or: “You begin by saying what kind of case it is, followed by the issues to be decided.” Those who adopt this last view probably think of issues as sentence fragments beginning with “whether.” And they’re sure to befuddle their readers, who, if they’re to understand what’s going on, must doggedly read much further into the explanation so that they can understand what was said earlier.
That’s bad exposition.
One opening, two mindsets
Let’s consider a typical example from a lawyer who has been elevated to the bench. It’s the opening paragraph of a lightly fictionalized judicial opinion, which I’ve annotated with superscripts. It’s from a state supreme court, with specifics changed:
This case comes before the court1 on a petition for review2 filed by the plaintiffs,3 John O. Crager, Kevin M. Sternenberg, Hoss Moulton, Joseph Brantley, Dan Zevely, Edward Wilhite, Gerald Boehning, Boone Liekhus, Rowena Liekhus, and Virginia Kuhlman (hereinafter referred to collectively as “the plaintiffs”4). The plaintiffs seek review5 of an unpublished decision of the court of appeals, Crager v. Zimmerman, No. 98-2795, unpublished slip op. (Ct. App. Oct. 7, 2023), affirming the circuit court’s decision to dismiss the plaintiffs’ complaint.6 The underlying issue here is whether7 the plaintiffs have carried their burden to prove state statute ยง 80.33(A)8 unconstitutional.9 The Randall County Circuit Court, Reserve Judge Vernon L. Ramaekers, presiding,10 dismissed the plaintiffs’ case after concluding that the plaintiffs failed to carry their burden of proving the statute’s unconstitutionality.11 The court of appeals affirmed,12 and we subsequently13 accepted the plaintiffs’ petition for review.14
1. Yes. That’s why you’re writing about it. The case is before the court.
2. Does the procedural mechanism matter? It’s a petition for review, not a mandamus action or some other procedure. But why are we being told this?
3. This phrase, “the plaintiffs,” introduces a grammatical appositive, in the form of a list of names. It repeats what was in the caption of the case just above this opening paragraph.
4. As we saw in No. 3, this litany began with a reference to the plaintiffs, followed by all their names. Then we’re told that all the named people are to be known as the plaintiffs. Is this necessary or even helpful? Would any respectable journalist ever do this? Would imprecision result? No. But why must we have the litany of names at all? They’re in the caption of the case. Must we list them here, in the opening sentence? Are readers expected to read them or skip over them? If the latter, is it wise to put things in the opening paragraph (or an opening sentence!) that are intended to be skipped?
5. The first four words of the second sentence repeat what was said in the first sentence.
6. Note that this second sentence is in reverse chronological order. That makes it hard for ordinary readers to follow. Does it matter (as we are twice told) that the intermediate court’s decision was unpublished? What are we to deduce from that?
7. This “whether” betokens a superficial statement of a problem. It will almost certainly say little.
8. What does the statute do? We aren’t told. Are we supposed to know it?
9. Unconstitutional on what ground? We don’t even know what the statute does, much less why it might violate the constitution.
10. Is the identity of the trial judge supposed to matter to us? We don’t even know what he was adjudicating, except that it has something to do with constitutionality.
11. The plaintiffs didn’t carry their burden. But what was their burden? What did they fail to show? We won’t know until we read a great deal more.
12. On what basis did the court of appeals affirm? We’ll have to read further.
13. If we’re in the state supreme court, we assume that the acceptance of review came after the intermediate court’s disposition. Why must this be said?
14. Now we’re back to where we started. It’s a circular paragraph. There’s a petition for review that has been accepted by the court. But what’s going on? We aren’t told.
Honestly, readers learn nothing of interest in that passage. The judge has explained little if anything but has raised many unanswered questions. We’ve read 144 words, and we know only that it’s an appeal relating to a statute’s constitutionality. There’s only one justification for this type of opener: That’s the way we always do it.
But let’s consider how that opener might be written if we were interested in explaining things to readers—if we had the mindset of communicative fervor. If you really wanted to get your points across, if you really wanted to explain to readers what’s going on, you might write this:
Ten plaintiffs sued the Department of Revenue challenging the constitutionality of its regulations regarding use-value assessments of agricultural land. On due process grounds, they seek to invalidate not only the regulations but also the statute on which they are based. Yesterday, we issued an opinion in Burgdorf v. Johnson, in which we upheld the constitutionality of both. Because that decision renders moot the question presented here, we dismiss this appeal.
In 70 words—fewer than half the words in the original passage—we’re told everything we need to know. We’re given as much explanation as is needed and no more. We’ve said it clearly, simply and pleasantly in a way that might be understood by reasonably intelligent people. At the same time, even lawyers have a better understanding of what’s going on.
This is just one illustration of what it means to be a professional explainer. I hope it sufficiently explains the point.
This story was originally published in the August-September 2024 issue of the ABA Journal under the headline: “Lawyers as Explainers: Remember, you are writing for intelligent people.”
Bryan A. Garner, president of LawProse Inc., is the chief editor of Black's Law Dictionary and an author, most recently of Hardly Harmless Drudgery: A 500-Year Pictorial History of the Lexicographic Geniuses, Sciolists, Plagiarists & Obsessives Who Defined the English Language.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
