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.
(Hat tip: Roy Jacobsen at Writing, Clear and Simple, who reprints his article on the subject (not limited to legal writing) in this cleverly titled post: Contractions and How Not to Abuse ‘Em.)
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.
Professor Wayne Schiess says one should generally avoid contractions in a legal memo because they may be perceived by the senior attorney reviewing the memo as too informal.
Ken Adams of Adams Drafting is dead set against using contractions in contracts, but not all commenters at his post agree.
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?
D. Todd Smith
Using contractions in legal writing is too informal in my view, especially in appellate briefs. I believe in simplicity and informality when possible, but contractions are where I draw the line.
This seems to me to be a situation that calls for a conservative approach. I see no downside to the increased formality of avoiding contractions. There is a downside to using them, however, because many judges and senior attorneys learned the rule that contractions should not be used. So one risks being viewed by such readers as not knowing having been educated to write properly.
Greg: I suspect that for the most part, resistance to using contractions in general legal writing is a function of unfamiliarity. Anyone who’s wary of the idea should give it a try. For my part, I’m now a believer. But here are two caveats:
First, some contractions are more sober than others. I don’t think I’d induge in “they’d,” for instance. Or “Garner’s an advocate of using contractions” (as opposed to the possessive “Garner’s book.”)
Second, some contexts are too formal for contractions. As you noted, I’m of the view that one such context is the prose of business contracts.
The California Style Manual (the official organ for the styles to be used in the publication of the Official Reports) does not approve of contractions:
Section 4:63 Apostrophe with contractions
The apostrophe is used to note the omission of letters or numbers in contracted expressions. Although occasionally used with numbers, contractions are generally not otherwise used in formal legal writing.
From the comments thus far, the argument seems to be hinging almost entirely on formality vs. informality. Can we conclude from this that formality trumps readability in legal circles? ;-)
I tell my students not to use contractions in briefs in the real world. Not because judges disapprove, but because senior attorneys do.
My own view is less conservative. Many highly respected publications use contractions–to superb effect. We lawyers ought to get on board. Contractions, if used wisely, can give the writing energy, crispness, and vigor. I like this:
“Throughout its brief, the appellant has repeatedly stated that Mr. Smith was hired in September 2002, before the incident occurred.
That’s not true.
He was hired in November . . .”
That’s powerful, and I like it. Don’t you?
Of course you do, but you’re afraid the judge will find it too informal. So what we need is the opinion of a judge or, better yet, a survey of judges on this issue. Give them two pieces of text and put a few contractions in one. Ask them if they object or if they think the contractions are too informal.
Surely some will object. But I bet most won’t. Every time I’ve seen a survey of judges asking them to choose between something traditional but stuffy and something newer but informal, the newer informal stuff wins.
Until we have such a survey, learn the preferences of your judges and govern yourself accordingly.
For drafting contracts (or legislation), I’ll defer to Ken Adams. For persuasive writing, I see no reason for a rule against contractions. I’d like to see all legal writers free themselves of superstitions like “No contractions!” and write in whatever manner is most readable and most persuasive. I’d like to see more individuality and more humanity in legal writing. So-called rules like “No contractions!” are what prevent many lawyers from writing like human beings.
I don’t see that using contractions in briefwriting enhances readability much, maybe not at all. To use Professor Schiess’s example, “That is not true” looks just fine to me, not even a little bit stilted.
Weighed against the minimal benefit from contractions, there is a real possibility of irritating the judge, so I opt against using them.
And in my experience, the lawyers who do use them are not exactly the Wayne Schiesses and Bryan Garners of the world. Contractions may be beneficial used sparingly in the hands of an otherwise highly effective legal writer, but I don’t trust myself with them, and wouldn’t recommend them to a friend (making allowances for blog comments, of course).
I once read (and I wish I could remember where) that one can identify good writers by whether or not their mouths move when they read. Probably, the reasoning is sound: Written words are a proxy for spoken words. When I write, whether it’s for a court or not, I put my writing through a read-aloud test. And if a contraction better fits the rhythm and flow of a sentence, I don’t hesitate to use it. I think that good writers should reject slavish devotion to rules such as “don’t use contractions in legal writing,” or “don’t begin a sentence with a conjunction,” or “don’t end a sentence with a preposition.” Good writers understand the guidelines and conventions of legal writing well enough that they can analyze their writing and make an intelligent decision about using a contraction (or a passive-voice construction) in a particular sentence.
I think that the above split in views reveals a problem inherent to briefwriting: we have good reason to feel less free than other professional writers to use techniques that, by most objective measures (e.g., readability studies) and most sensible people’s honest reactions, make prose clearer, more vigorous, more readable, etc., but that violate black-letter usage rules that folks learned in grade school. For most writers, a reasonable goal is to do the best job, on average, of pleasing, effectively communicating to, and making a good impression on a broad audience. If you had 100 or 1,000 readers rate a piece from 1-10, most writers’ goal would be the highest average score. But we write briefs for an audience of 3 or 7 or 9, and while the average score is important, the small number of readers makes each individual score too important to ignore. Suppose that using contractions makes your writing slightly better, and that 2 of 3 or even 6 of 7 judges will like it better–will grasp your points more easily and form a good impression of you as smart, lucid, clear-thinking, etc. But one judge is distracted by your breaking the rules she learned from Sister Dolores in 5th grade, and develops a supercilious stickler’s scorn for your literacy, and those feelings infect her reception of your brief. That’s a problem. I fear that “innovations” in formal writing like contractions tend to irritate the stickler minority much more acutely than the improvement in prose pleases the sensible majority. And irritating one stickler on a panel could be disastrous. I fear that this equation compels us, rationally, to a greater conservatism than is sensible for most writers, for whom pleasing 6 out of every 7 readers a little better is a win, and who can just say, “Who cares?” about the one stickler whom they put off.
Obviously I haven’t answered the narrow question, To contract or not to contract?, but it struck me as another example of this recurrent tension. Which I don’t like.
http proxy list
In my experience, the lawyers who do use them are not exactly the Wayne Schiesses and Bryan Garners of the world. Contractions may be beneficial used sparingly in the hands of an otherwise highly effective legal writer, but I don’t trust myself with them, and wouldn’t recommend them to a friend.
Nice post…“Write as you talk” is a common rule of writing readable, 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.
Pro se Appellant
I’m a pro se appellant that needs to get his brief below the word limit. So I’m gonna
use ’em. Although not exactly like that last sentence.
Stephen R. Diamond
I once favored contractions and have since changed my mind. But the main reason I find contractions ill advised isn’t the one usually identified. The problem with contractions isn’t the (essentially fictitious) stickler’s reproach for bad grammar but the typical judge’s (sometimes subliminal) irritation with presumptuous chumminess. (See my entry, “The celebration of informality and the unsettled status of contractions.” (http://tinyurl.com/8x5f35c)