Faithful counsel-in-waiting may be taken aback by the title of this week’s column. After all, isn’t the written word the essential tool with which the lawyer plies his trade?
Actually, the bar’s relationship to language is more complicated than that of a tradesman and his tools. Much the same way nervous adolescents speak so filthily about sex – not as a means of engaging with the subject, but rather in order to avoid it – lawyers seem to prefer detached, qualified references to something called “writing skills”. Indeed the only thing that embarrasses advocates more than talk of great writing is the idea of “justice”. There again they insist on indifferent buzz-phrases like “access to justice”.
One recalls the apocryphal story of the law professor who insisted on the distinction between law and justice. When presented with the challenge that a particular legal concept was unjust, he dutifully marched the entire class outdoors, pointed up to the building’s exterior wall, and loudly observed that the sign overhead read “School of Law” and not “School of Justice”. Fair enough. But if justice isn’t the point of law, what other point could there be?
The profession’s connection to writing, like its relationship to justice, is one of hostility rather than cooperation. If clear language begets lucid thinking, then bad law will demand convoluted language. So it’s no surprise that when the Center for Plain Language issued its report on the various branches of the American federal government, the worst marks went to those departments that are most keen on minimizing the place of justice in the law (Department of Labor, Securities and Exchange Commission, Drug Enforcement Agency, et cetera).
The difference between philosophy and sophistry is that while the philosopher loves knowledge, the sophist regards it simply as a tool to be used to his advantage. Lawyers needn’t trouble themselves over what’s the most just or articulate position. That’s not the point. Justice and the written word are simply tools in the kit, there to be used when they could benefit the position she’s been hired to advocate. Come to think of it, that’s the definition of sophistry.
Sophists won’t be good thinkers, even if they’re occasionally good at thinking. Nor does controlling for “writing skills” necessarily yield a crop of good writers. It produces a class of counsellors who would use weak, tortuous wording to obscure justice just as soon as they would employ robust language to advocate for it.
The essential law course for any would-be wordsmith, scribe or scribbler is Media and Defamation Law (because even in peacetime one must prepare for war). The law –having long since abdicated its role as a guardian of free speech—now through oppressive libel rules –positively insists on gumming up the works. Even where a person is known definitively to have done wrong, we learn, before he’s been convicted it would be inadvisable for the media to refer to him as a “criminal.” It would be more prudent for to reporters to say that he has “committed criminal acts.”
Well what, pray tell, is a criminal if not someone who commits criminal acts? This sort of parsing is commonly known as “a distinction worthy of a lawyer.” In reality we’re far past that point, and are now trading in distinctions that only a lawyer can see. But much like a voice in your head, if only you can hear it, then it probably isn’t there. Adding words without adding thoughts is never a good idea. Not only does it sound silly, but the blow is considerably softened.
The might of the pen can only compare to that of the sword if words are occasionally allowed to be cutting. Loudly denouncing a deserving foe as a “liar” or a “crook” can have a wonderfully scathing effect. But just try inflicting a comparable wound on behalf of justice, while adding the necessary mouthful of qualifiers (“alleged to have committed acts consistent with”). You’ll suddenly find that there’s no longer any dagger in your sheath, no sword in your scabbard. You’ll be left, as the teens say, pushing rope.
Many words, in the legal context, do take on technical definitions. These idiosyncratic interpretations are sometimes called “terms of art,” which is actually just a jargonistic way of saying “jargon.”
Sometimes a small measure of jargon can be useful for working with technical concepts. But the law abuses this prerogative. For one, law employs few especially technical ideas, preferring instead to complicate simple concepts in an endless serpentine maze of haughty technobabble and opaque gobbledygook.
Assigning to a word a particular meaning doesn’t rob it of its general meaning, any more than standing stubbornly in place keeps the planet from spinning you on its axis. Yet the law has difficulty with this distinction. So when you attempt to breathe some life into a calcified legalism by employing such a radical implement as say, a synonym, you’re not just rebellious and deviant and queer, you’re actually wrong in point of law. If something is “reasonable” in the legal sense, it is only ever “reasonable” and can never be “sensible” or “rational”, no matter how appropriate the other word may be.
In respect of this tradition I propose replacing the trite “term of art” with a new concept: the farconym (being an acronym for FAncy Rhetorical COnvention with NarY any Meaning).
Jerry Seinfeld said lawyers are like the players of a board game who’ve read the rules at the top of the box. But it takes a special kind of fussbudget to demand strict adherence to the rules long after the game is over. Perhaps a bit of pedantry is to be expected from the class of citizens who are charged with interpreting the rules. But too often the rules don’t just fail to facilitate justice, they also prevent injustice from being approached head-on.
So we find that lawyers are bad writers, not despite their relationship with language, but precisely because of it.
Still, those taken in by the “writing skills” fallacy need not despair.
Nowhere is it written that the most insufferable bore at every dinner party need come from our ranks.
