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The difference between technical legal work-product writing and letters, memos, articles and other communications is that legal writing is crafted to withstand the scrutiny of other lawyers trying to exploit any weakness. 

Virtually all other writing is meant to create a specific effect in the mind of one voluntary reader, and support an explicit or implicit "call to action," e.g.,

  • to think of you a certain way, 
  • to look at an issue differently, 
  • to be more aware of an idea, 
  • to respond with a phone call or visit, 
  • to sign up for an event, etc. 

The important part here is "one voluntary reader." 

  • Write as if you are conversing with one person, and adjust your language to fit that individual.  Presumably, you know the reader, or at least know something about the reader's mindset based on her membership in a targeted group or profile.  (If it isn't targeted, don't bother writing it.) 
  • Allow time between writing and publishing. Overnight at least. I can't count the number of times I thought something I wrote was great, only to shudder the next morning at what time allowed me to see as over-the-top cleverness.  
  • After you write it, read it aloud.  Then rewrite it in language that sounds less stilted, more like it may actually have come out of the mouth of a normal human.  
  • Eliminate prepositional phrases and complex sentences.  Use active-voice verbs and eschew all forms of the verb "to be." I once heard Ed Good, legal-writing teacher at Washington, DC's Finnegan Henderson and author of Mightier Than the Sword, deliver an address during which he made a mark on an easel pad each time he used a form of "to be." After speaking for 30 minutes, he had made only six- or seven marks, and I realized that I had just heard the clearest, most succinct and interesting remarks I could recall. While Ed's extreme verbal discipline is the product of years of concerted effort, his results argue convincingly for at least trying.
  • Use non-English phrases sparingly, if at all. Well-educated lawyers sometimes allow Latin "terms of art" or other foreign language phrases to creep into their writing.  At one time, peppering one's writing with Latin or Greek was a hallmark of education, but no longer. Persona non grata and je ne sais quoi are not as commonly understood as they once were, and many Latin legal terms are meaningless to non-lawyers. Why risk alienating readers?
  • Hire an editor. Really. It's definitely worth it, and it doesn't cost as much as you may assume. I don't care how good you think you are, a professional is better. One of the best is my dear friend (and my longtime editor), Doug Stern, who is fond of a quote from Justice Brandeis: 

"There is no great writing, only great rewriting."  

To which I'll add one from novelist James A. Michener:

"I have never thought of myself as a good writer. Anyone who wants reassurance of that should read one of my first drafts. But I'm one of the world's great rewriters."

The New York Times is written at a high school English level, and they manage to communicate effectively enough to be regarded as "the newspaper of record." The purpose of interpersonal communication is to connect with and engage your audience, not to raise English usage to a new level of art.

Mike O'Horo

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