>> The Legal Writer #17: The Crucade Continues

The Legal Writer #17: The Crucade Continues

By Judge Mark P. Painter

Perhaps it sounds pretentious to call pushing for plain language in legal writing a “crusade,” but it makes some sense when we remember history. Lawyers started writing two words for one after the Norman Conquest, which was some years before the original Crusades. We are making progress—but progress in our profession is slow. After all, we have been writing badly for more than a thousand years.

Judges See The Light

The campaign to rid our paragraphs of the jumble of letters and numbers called citations has won converts throughout Ohio. Putting citations in paragraphs, rather than in footnotes, destroys readability. As lawyers, we have trained our eyes to “fast forward” past citations, but it is still difficult, especially where the citations are long. Another problem is that citations hide bad sentences and flaws in reasoning.

As for progress—these are cases from various Ohio appellate courts where citations are banished to footnotes: State v. Stuber, 150 Ohio App.3d 200, 2002-Ohio-6309, 779 N.E.2d 1090 (Hadley, J.); State v. Youlten, 151 Ohio App.3d 518, 2003-Ohio-430, 784 N.E.2d 768 (Kilbane, J.); Good v. Krohn, 151 Ohio App.3d 832, 2002-Ohio-4001, 786 N.E.2d 480 (Walters, J.); Citicasters Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002-Ohio-5814, 778 N.E.2d 663 (Hildebrandt, J.); State v. Huffman, 151 Ohio App.3d 222, 2002-Ohio-7121, 783 N.E.2d 950 (O’Neill, J.); Bowling v. St. Paul Fire & Marine Ins. Co., 149 Ohio App.3d 290, 2002-Ohio-4933, 776 N.E.2d 1175 (Winkler, J.); Crystal v. Wilsman, 151 Ohio App.3d 512, 2003-Ohio-427, 784 N.E.2d 764 (Blackmon, J.); State v. Bennett, 150 Ohio App.3d 450, 2002-Ohio-6651, 782 N.E.2d 101 (Sundermann, J.); State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Sharp, 11 Ohio App.3d 756, 2003-Ohio-1186, 785 N.E.2d 822 (Painter, J.). Delaware and Alaska have adopted the citations-in-footnote system statewide, and at least some Texas Supreme Court justices have converted: See, for example, Derose v. State (Del. 2003), 830 A.2d 409; Riddell v. Edwards (Alaska 2003), 76 P.3d 847; In re A.V. (Texas, 2003), 113 S.W.3d 355.

We now see plain-language opinions populating the Northeast Second, Pacific Third, Southwest Second, and Atlantic Second volumes. The cases are infinitely more readable than ones with citations in the text.

The foregoing list is in the text because the citations are the point, not authorities for the point. And they are not interspersed within and between sentences.

Lawyers Also

Lawyers and firms are also getting on board. Most law firms in the First Appellate District have converted, along with the county prosecutor’s office. In Cleveland, the Cleveland Department of Law, under the leadership of director Subodh Chandra, has converted its entire operation to plain language.

Many firms have writing programs and have done in-house instruction on writing plainly. I see mostly briefs from Cincinnati lawyers, but I am sure there are many more firms and departments statewide that have swept citations to footnotes, forbidden legalese, and stopped using three words for one. One benefit to me personally — the briefs I get are so much easier to read than a few years ago.

Cutting It Off At The Pass

Under the progressive leadership of Dean Joseph Tomain, the University of Cincinnati College of Law is seeking to prevent students from internalizing the bad legal writing to which they will be exposed in law school — cases, statutes, deeds — by giving to each entering student two books on plain language. Law students, many of whom are good writers when they start, must be told not to be ruined by reading legal writing and seeking to emulate it. Perhaps other law schools could follow Dean Tomain’s example.

Still A Battle

Much more needs to be done. I still see briefs in Courier font, the most difficult to read. Some lawyers cling to unreadability by putting citations in paragraphs, using parenthetical numericals (there is one (1) defendant), including irrelevant dates, and failing to state the issue up front.

Some judges continue to believe that they write only for other judges and lawyers, and think that we like the “old” ways better. Most of us don’t; most of us like to be able to read a document. And cases are about people—shouldn’t the parties at least be able to read what is happening to them? Unfortunately, in Ohio the leadership in plain language is coming from the ground up, through the firms and appellate courts, as the Ohio Supreme Court still clings to jumbling citations in paragraphs. Once that court follows the lead of the supreme courts in Delaware and Alaska, and many other courts across the country, the task for the rest of us will get easier.


Mark Painter is a judge on the Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd ed.: 40 Rules for the Art of Legal Writing. The book is available at Joseph-Beth Booksellers in Cincinnati and Cleveland, The Book Loft in Columbus, the Ohio Book Store in Cincinnati, Barnes & Noble in Cincinnati (Kenwood), and from Ohio Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him at jugpainter@aol.com, or through his website at www.judgepainter.org.