A lawyer has two jobs. First, the lawyer thinks about how the law might work, good or bad, in their client’s situation, and then tells their client. Second, the lawyer brings others around to ideas about the law that are good for their client.


Outside my office, there’s a poster of the brilliant xkcd comic “Up Goer Five,” in which the various complicated parts of the Saturn V Moon Rocket are “explained using only the ten hundred words people use the most often.” As the comic explains, the “US Space Team’s Up Goer Five” is “the only flying space car that has taken anyone to another world.”


It is an amusing joke, juxtaposing one of the greatest engineering feats of humanity with a kindergarten-level vocabulary. It also carries an important reminder about the limitations of language: rightly or wrongly, words have different meanings for different people. (“Inconceivable!”) The first paragraph of this post won’t win any awards, but the vast majority of the population can read it and understand it: it is written at a 7th grade level with every word being one of the “ten hundred” most often used words except for law, lawyer, and client. You can check it with the Up-Goer Five Text Editor and the Hemingway Editor — in fact, you might want to check all of your writing with both of those tools.


Lawyers are routinely attacked for their use of language: just last week, the Chronicle of Higher Education noted sardonically, “Only two classes of people, it seems, stick up for the adverb: young adults and members of the bar.” (I’ll gladly stand up for adverbs: a lawyer should not needlessly omit them.) Yet, few professions agonize so thoroughly over language as the law. Back in August, the American Bar Association’s journal for young lawyers had an issue devoted to writing. It’s worth a review by all lawyers, including those who fancy themselves great writers. If you’re going to read only one article, make it Michael Bess’ pithy “How To Write Better.”


Similarly, although advice about writing never goes out of style — writers like to write about writing, no surprise there — there seems to be a bit more chatter devoted to the subject thanks to the recent promotion of Steven Pinker’s The Sense of Style. As The New York Times’ review summarized:


The cause of most bad writing, Pinker thinks, is not laziness or sloppiness or overexposure to the Internet and video games, but what he calls the curse of knowledge: the writer’s inability to put himself in the reader’s shoes or to imagine that the reader might not know all that the writer knows — the jargon, the shorthand, the slang, the received wisdom.


Yes, indeed. As Judge Richard Posner began his contribution to the aforementioned ABA article, “Successful communication requires the communicator to understand how much the person or persons to whom he is communicating understands.”


What I try to remember as a legal writer is that an ounce of empathy for the reader is worth a pound of grammar and vocabulary


Unfortunately, in contrast to “Up Goer Five,” Pinker’s writings demonstrate how easy it is for even a smart, diligent, focused individual to go off the rails. As The Telegraph noted:


If you had to boil down Pinker’s advice into two main points, they would be: “Keep it snappy” and “Keep it simple”. Unfortunately, he proves wholly incapable of abiding by his own rules. Rather, he’s a colossal windbag, never using three words when 35 can be rammed into the breach, and frequently writing sentences so tortuous that they seem to be eating themselves. He even manages to define what a coherent text is in a way that made my eyeballs rotate in opposite directions: “A coherent text is one in which the reader always knows which coherence relation holds between one sentence and the next.”

Got that? All right then, try this: “In fact, coherence extends beyond individual sentences and also applies to entire branches in the discourse tree (in other words, to items in an essay outline).” I may be excessively picky here, but I can’t help feeling that the phrase “in other words” doesn’t belong in a sentence about the virtues of coherence.

All I can say is: ouch.


But Pinker’s advice isn’t wrong just because he seems incapable of following it himself. The problem is that a writer can’t be all empathy. The very purpose of writing is to convey some new information or some new idea to the reader, and that can’t be done without challenging the reader to some extent. As Pinker noted at Edge.org:


The literary scholars Mark Turner and Francis-Noël Thomas have identified the stance that our best essayists and writers implicitly adopt, and that is a combination of vision and conversation. When you write you should pretend that you, the writer, see something in the world that’s interesting, that you are directing the attention of your reader to that thing in the world, and that you are doing so by means of conversation.


Let’s go back to empathy: the key component here is to see writing as part of a conversation. If you were talking to someone, you would listen to their responses and watch their non-verbal cues to direct your own conversation. When writing, you have none of that feedback, and so it’s incumbent on you to take extra care to consider why and how the reader will approach your writing, be it a brief, a letter, a blog post, or any other text.


And with that, I’ll stop, hopefully before coming across like a colossal windbag.