>> Reader Examples of Bad Legal Writing

Reader Examples of Bad Legal Writing

By Judge Mark P. Painter

Many readers have sent me grammar and usage questions – or examples of goofy legal writing. In this column, I set out some that might be of general interest.

Problems With Civil Rule 38

This rule concerns jury demands. I have surely read it many times, but alert readers Robert Lynch and Michael Cosgrove of Cleveland have pointed out the archaic language in Ohio’s version. This is the offending excerpt: “Such demand shall be in writing and may be indorsed upon a pleading of the party. If the demand is endorsed upon a pleading the caption of the pleading shall state ‘jury demand endorsed hereon.'”

The hereon is bad enough, but the rest of the rule also includes such issue, such demand, such action, and herein provided. And the party is always he. Why does it say indorsed, then endorsed? The latter is proper, with the other spelling a “variant.” The rule hasn’t been changed since 1976. It needs some work! Strangely, the federal equivalent has the indorsed but not the silly hereon language: “Such demand may be indorsed upon a pleading of the party.”

Intrigued (or maybe not having a life), I looked at some other states. Florida has it right: “The demand may be endorsed upon a pleading of the party.” It has the instead of such, and endorsed is spelled properly. Pennsylvania says simply, “The demand shall be made by endorsement on a pleading or by a separate writing.” Massachusetts has a slightly different variant: “Such a demand may be endorsed upon a pleading of the demanding party.” The two italicized words were added to the federal version when it was adopted in New Jersey – I guess they like extra words.

Lawyerism Issues

A reader who wishes to remain anonymous sent this example, penned by a former colleague: “Enclosed is a release which requires your execution.” Of course, it should be that rather than which, but I doubt that clients would sign anything requiring their own death. At least it didn’t say, “please find enclosed.”

Many years ago, a friend once tried a case in small-claims court, where the defendant was in court unrepresented. It was a collection for a past-due account for a washing machine. My friend obtained a judgment, but offered, in front of the judge, to “stay execution” so the defendant could make payments. The woman almost fainted, exclaiming, “You’re gonna execute me for this?” The moral: Be careful using lawyerisms with non-lawyers.

Like v. As

Another question from a reader asks when like should be replaced by as. First off, the old rule is breaking down in practice, especially in speech. But in writing, my shorthand explanation is that if like can be replaced by as or as if, it usually should be. Like is a preposition used as an adjective, not an adverb. As an adjective, it applies to nouns or noun phrases.

Thus in similes, like is proper: He is like a fool. He looks like Washington. In both of these examples, like translates as similar to.

Where like is at best questionable in writing is when it’s substituted for as or as if: She acts like [should be as if] she has a grievance. The play ended like [should be as] it should. But be careful. Bryan Garner, the guru of all writing, warns that you can fall into the opposite error – don’t use as when like is proper: “As [should be like] many people, I am confused.”


I always show the readability scores for the column. Statistics for this column: 15 words per sentence, 12 percent passive voice, and grade level 8.2.


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 10 years, after 13 years on the Hamilton County Municipal Court. He has served as an Adjunct Professor at the University of Cincinnati College of Law since 1990. Judge Painter is the author of five books, including The Legal Writer: 40 Rules for the Art of Legal Writing. The third edition of that book was published in May. It is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing and will give his six-hour legal writing seminar in December 2005 in Cincinnati, Cleveland, Columbus, and Toledo, Ohio. Contact him through his website, www.judgepainter.org.