Legal Writing in Plain English: A Text with Exercises [Paperback]

Most prestigious lawyers, law firms, and judges strongly favor Garner's plain-language approach to drafting. For example, the late Charles Alan Wright, a brilliant Supreme Court lawyer and noted author, called Garner "the world's leading authority on the language of the law." And the Texas Supreme Court enlisted Garner's aid in redrafting the Texas Rules of Appellate Procedure. So it's hard to believe that judges would generally prefer "conventional drafting" over the clear, accessible language that Garner advocates.

The five five-star reviews of the book on this website came from a law professor, a practicing lawyer, a book reviewer, and two others who appear to be nonlawyers. I wondered if the anonymous New York corporate lawyer who gave the book a meager one star knew something that everyone else didn't. So I checked for reviews from highly respected sources. And I found that Harvard Law Review, the Law Library Journal, and Trial have all published very favorable reviews of this book.

The plain-language drafting recommended in this book is widely viewed as beneficial, not only by nonlawyers, but also by highly skilled lawyers who seek to avoid ambiguity and litigation and who strive to improve the tarnished image of lawyers generally. I believe that Garner's approach would be condemned only by a few rich corporate lawyers who thrive by making themselves indispensable in drafting, translating, and later litigating the long, dense form contracts that they produce.

Mr. Garner advises that lawyers should draft in plain English, not for a mythical judge who might be called upon to interpret a provision in the worst-case scenario of litigation. While I am all for clarity, legal draftsmen would be well advised to consider the malpractice hazards of not drafting for a judge. By all means, make your drafting unambiguous and eschew sloppy and overly-complicated formulations, but keep in mind that if there is a question of interpretation, it will be a judge or arbitrator with legal training who will have to resolve it and, whether the judge or arbitrator likes it or not, he or she knows what to do with conventional legal drafting. And I don't seriously believe that a judge would prefer to read three pages of easily accessible prose over two sentences of conventional drafting that, given his or her legal training and experience, can be absorbed in a few seconds.

Put simply, you'd rather have a patent protect your client than have it be understood by a layman. Similarly, you'd rather have to explain a contractual provision to a client than not have it give her the legal protection she has hired you help provide. Would Mr. Garner advise that mathematicians frame their equations in prose, simply because this makes their conclusions more accessible to the nonmathematician? Or that advertisements be written in full sentences?

For example, Mr. Garner begins the book by criticizing the formulation "Notwithstanding anything to the contrary." Although it lacks iambic pentameter, there can be little question of its intent: what follows overrides any conflicting provisions, and you, Mr. Judge, should consider this when one party argues that another provision should prevail. And what's wrong with a well-drafted proviso?

Mr. Garner also ignores the choice between the precision offered by good, but conventional, legal drafting, and the difficulty of achieving that same precision when drafting in plain English. Given the choice, I'd prefer to draft a short, precise, clear sentence than two pages of nattily formatted plain English. At my hourly rates, I suspect my clients would prefer to pay for the former, too.

Finally, Mr. Garner ignores the reality of most legal drafting: it begins with precedent that doesn't conform to his views. Again, given the high cost of quality legal work, it might be worth tinkering with language to make it clearer, but it would prohibitively expensive to completely redraft from scratch a complicated transaction document in the manner he suggests.

Perhaps the most telling point: the book jacket has no endorsements from anyone at a prestigious law school or law firm.

A noble cause, but Mr. Garner writes like an academic without real-world experience.

Furthermore, the reviewer needs to realize that Garner is not advocating that all legal writing be poetry. First and foremost, he advocates for clarity and precision. If the writer can also make it interesting to read (or even a joy to read), then more power to the writer.

If you're a lawyer and hate seeing "WHEREAS" before each recital and prefer a simple sentence, Garner is the man for you.