There are some grammatical “rules” that simply don’t make sense and can make your briefs more stilted if strictly followed. Two common favorites for being disregarded are: (1) don’t end a sentence with a preposition; and (2) don’t split an infinitive. I think most legal writers feel free, and rightly so, to ignore these “rules” when doing so makes for a smoother presentation. (Though Ray Ward says to be cautious about splitting infinitives.)
These rules are general grammatical rules. A rule I have heard applied only to more formal writing, including legal writing, is “Do not use contractions.” From force of habit, I usually don’t. (Yes, I know I use contractions in my blog posts, but that is a much more informal medium.) I don’t actually remember this rule being taught in my legal writing class back in 1990, but I learned it somewhere, and it has stuck with me.
But do we really need to avoid contractions completely? Ray Ward doesn’t think so, at least not in appellate briefs. Drawing on Bryan Garner’s change in attitude over time, he says (footnotes omitted):
In the first edition of The Elements of Legal Style, published in 1991, Bryan Garner counseled readers to avoid using contractions in legal writing. Now, he says contractions are okay. He recognizes that judicious use of contractions results in a relaxed, confident style. Relaxed,confident attorneys aren’t afraid of using contractions when arguing orally before an appellate court. If contractions are appropriate in oral argument (and they are), then they’re okay in briefs too.
Plainlanguage.gov also invokes Bryan Garner (emphasis added):
While many legal authorities say that contractions don’t belong in legal writing, Bryan Garner, a leading authority on legal writing, advocates their use as a way to make legal writing, including opinions and rules, less stuffy and more natural. Contractions make your writing more accessible to the reader. Research shows that that they also enhance readability (Danielson and Larosa, 1989).
“Write as you talk” is a common rule of writing readably, and the best tool to do that is to use contractions. People are accustomed to hearing contractions in spoken English, and using them in your writing helps them relate to your document.
Use contractions with discretion. Just as you shouldn’t bullet everything on a page, you shouldn’t make a contraction out of every possible word. Don’t use them wherever possible, but wherever they sound natural.
Mister Thorne at Set in Style seems to be okay with contractions in briefs, illustrated with a clever hypothetical Q & A that makes fun of the misuse of “which” for “that,” which I complained about just a few days ago.
Does anyone out there still feel strongly that contractions should not be used, or that they should at least be avoided, in appellate briefs? What about other forms of legal writing?