Pursuant to Partners’ Directive, Lawyer Learns to Obfuscate

by Ken Bresler
Chicago Daily Law Bulletin, August 16, 1990

Republished in Perspectives: Teaching Legal Research and Writing (West Corp.), Fall 1994; Michigan Bar Journal, Dec. 2000; Scribes Journal of Legal Writing, 2000; and The Docket (Denver Bar Assn.), March 2001

I’ve dropped out of the movement for modern legal writing. I used to avoid, but now I embrace convoluted sentences and legal gobbledygook.

In law school, one of my favorite instructors taught me that the purpose of legal writing was to communicate effectively, not to sound like a lawyer. But when I became an associate in a law firm, my writing style – clean, brisk and straightforward – exasperated the other lawyers. I just didn’t sound like one of them.

One partner summoned all his patience, pulled me aside, and gently asked, “Didn’t they teach you how to write in law school?” The real answer was, “Yes and that’s what seems to be the problem.” Instead I said, “I guess not.”

My firm was willing to train me, or more accurately, retrain me. It paid my admission to a continuing legal education course that included a component on writing. During the course, a lawyer instructed us to avoid stuffy and archaic language.

Then it was my turn to be exasperated. During the question-and-answer period, I raised my hand and said, “Hypothetically, what if an associate followed all these rules of modern legal writing, and the partners thought he couldn’t write, and then sent him to this course?”

“Well, you would be right, and they would be wrong,” the lawyer said. This answer didn’t solve my problem, but only reaffirmed it.

Back in my law firm, one lawyer told me that I was incapable of writing an intelligible English sentence. My writing stunk, another lawyer said, but used a stronger word. The partners told me during my semi-annual review that if I didn’t improve my writing, I wouldn’t have much future at the firm.

I was bewildered, because The National Law Journal, The American Bar Association Journal and The Criminal Law Bulletin were publishing my articles. I knew that I could write, and so did other lawyers outside my law firm.

The firm sent me to a second writing seminar. When I walked into the classroom, I laughed: there was my law school instructor. The same person who had spent a semester teaching me to write lucidly was supposed to unteach me in one day. And that’s what he did, with a single comment.

During the seminar, my instructor mentioned that he often conducts similar training sessions in law firms. Partners hire him to teach their associates whom they think can’t write. When he arrives, he often finds that it’s the partners who can’t write or recognize clean legal prose.

That seems to be my predicament, I explained, and asked him what I should do. He said, “I teach legal writing. I don’t run an outplacement service. Write how they want you to write.”

Henceforth, subsequent to receiving an assignment from a partner, but prior to commencing it, I made inquiry of the respective partner’s secretary as to the existence and location of any motion or memorandum similar to the aforesaid assignment, and upon conducting a review of an exemplar of such motion or memorandum duly signed by the partner in question, would proceed to draft the requested document pursuant to and in accordance with the partner’s style.

I combined what should have been two sentences into one sentence. I padded sentences with excess verbiage. I separated sentences’ subjects and objects with conditional clauses and interjections. I wrote in the passive voice. I threw in Latin phrases when English ones would have done as well.

Writing like a lawyer pained me at first, but my signature wasn’t going onto the finished product. I was only a ghostwriter for the partners. I still believed in modern legal writing, but I had gone underground. I figured: When in Rome, use Latin.

My reviews got better. “The courses worked!” a partner exulted. Another partner, eager to see even more improvement, offered to send me to a third writing course. I looked at the syllabus: my law school instructor taught it. I declined to attend. I needed more time to allow what I had unlearned to sink out.