The Inexplicable

A Note From Kevin (Hereinafter, “Me”) to All Attorneys (Hereinafter, “You”)

Generic legal document—do not imitate

I directed my eyeballs at the first paragraph of this recent order, and was punished accordingly:"Now before the Court is the motion for class certification filed by George Engurasoff ('Mr. Engurasoff')"Here are the comments I’d have if this appeared in a draft offered to me by an associate:

The same thing obliterated by red pen

I should point out that the rest of the order is fine (well, not a huge fan of the result, but the writing is fine). But what we have here is something that is amazingly common in legal documents: a first paragraph that occupies critical real estate yet serves no useful purpose at all. In particular, the insistence on parenthetical definitions like those circled above, always and for everything, necessary or otherwise, has reached the status of an infestation. And like kudzu, the Burmese python, or the brown marmorated stink bug, it threatens the ecosystem it has invaded and has proven incredibly difficult to eradicate.

Whence cometh the seemingly irresistible impulse to do this? Probably it cometh from law school. They don’t teach it there, it’s just one of the habits law students pick up from being forced to read so much bad writing. Or it may afflict the brain during the first year or two of practice, for similar reasons. Either way, I don’t think anyone consciously adopts this habit. It just seeps in and then becomes almost impossible to get rid of, like an odor emanating from a foul substance coating a duffel bag that someone unwisely stored in the luggage compartment of a Turkish bus during an overnight trip from Istanbul to Sofia. You can scrub and scrub, using the strongest industrial detergents, but when you later mail that bag back to the friend you borrowed it from she’s still going to call and say “what the hell happened to this bag,” which is one reason you no longer speak.

Yes, I guess that analogy did become oddly specific. Strange.

Is a parenthetical definition ever required? Sure, maybe one percent of the time. There’s a valid example in the second paragraph of the order, in fact. There are four defendants in the case, each of which has “Coca-Cola” in its name. It was therefore acceptable and probably even necessary to write “(collectively ‘Coca-Cola’)” after naming them, as the author did. So, yes, there will be rare situations when you really need to define terms. If so, fine.

But the paragraph I scribbled on above does not involve one of those situations.

There are eight plaintiffs.

Each has a different name.

There is no risk of confusion. If, for example, the words “Mr. Engurasoff” appear later on, readers will know which Mr. Engurasoff this means BECAUSE THERE IS ONLY ONE RELEVANT ENGURASOFF. Likewise, “Mr. Merritt,” “Mr. Ogden,” and so forth, could refer to only one relevant person. It is therefore unnecessary to define those terms. Nor, under the circumstances, is it necessary to end the list with “(collectively, ‘Plaintiffs’).” These are the people who moved for class certification, we are told, and such people are virtually always plaintiffs. So you could leave that one out, because it isn’t necessary, and go on to something that is.

Let’s put it another way. If you were talking to someone, possibly telling them a story about what happened to a duffel bag after someone unwisely stored it in the luggage compartment of a Turkish bus, you would not devote the first 60 seconds of that conversation to ensuring that you provided a clear referent for each person who might later be mentioned therein. “This story concerns a trip taken by me, Kevin Underhill (‘Kevin,’ ‘I,’ or ‘Me’); a duffel bag loaned to Me by a friend, Jane Smith* (‘Jane’); and a mystery that an uncaring bus driver (“Driver”) refused to address.” The listener would surely be thinking, “why is he explaining these terms to me in advance like I’m an idiot? Does he think I won’t be able to figure it out?” Which would be a shame, if you actually had a decent story to tell. So don’t do that when you write, either.

Less offensive, but still unnecessary, is the last sentence of that first paragraph: “The Court has considered the parties’ papers, relevant legal authority, and the record in this case, and it HEREBY GRANTS, IN PART, AND DENIES, IN PART, Plaintiffs’ motion.” This was unnecessary for two reasons.

First, it didn’t need to say, “the Court has considered the parties’ papers, relevant legal authority, and the record in this case,” because that’s what courts do. If something out of the ordinary took place (“The Court has considered the Book of Revelations, the legal theories of Alan Dershowitz, and the screenplay for that Black Mirror episode about the pig”), then that should probably be disclosed. Otherwise, it seems safe to assume the usual stuff happened.

Second, it’s unnecessary, for a different reason, to state that the court “GRANTS, IN PART, AND DENIES, IN PART,” the motion. Why? Because there’s a caption about two inches above that saying the document is an “ORDER GRANTING, IN PART, AND DENYING, IN PART, [A] MOTION.” So the words in that sentence are also unnecessary, meaning the entire paragraph can and should vanish.

Does any of this matter? Well, in the long run, the Sun will begin to cool, the brown marmorated stink bug will become Earth’s dominant species, and at that point nobody will care much that you saved some space in a document. But in the short term, as in the span occupied by your career, yes. It does matter. The first few paragraphs are the most valuable real estate in your document. You can force a reader to slog through unnecessary junk there, or get to the point. You should do that second one.

If you really want a reader to hate you, though, you should also throw in all the “hereinafters.” Usually that’s not the goal, but you do have that option.


*Not her real name.