CBA Record May-June 2022

35 TH ANN I VERSARY OF THE CBA RECORD

surplus words.” More pointedly, he sim plifies legalese, which embraces “at that point in time” (then) “for the purpose of ”, (to) “in accordance with” (by, under). We should also avoid terms such as “afore mentioned,” “whereas” and “hereinafter.” 2017: Singular “They” and New Pronouns Perhaps the biggest change over the last 35 years is the move away from gender based language to gender-neutral—and not just the clunky “he or she” but singular “they” and “their”, “ze/zir” or “xe”, and “Mx.” in place of Mr. or Ms. In January 2017 Dillon Narko wrote on the power of pronouns. “Language is always chang ing—even in the realm of traditional legal communication.” She explained that recently people have chosen to use “ze” or “they” as a singular pronoun because it avoids the gender binary of he or she. She quotes Professor Greg Johnson of Ver mont Law School, who said that in time, we may find use of “his or her” or “s/ he” “positively archaic and retrograde.” In a recent conversation with Dillon

fact technology has made legal writing ever more critically important. This is so because technology permits an enormous volume of information, and that volume demands synthesis and organization.” His article equates good legal writ ing with architecture: organization is the blueprint, headings are “you are here” signs, failure to follow the court’s format requirements could result in a “stop work” order, and proof reading is the building inspection. Longman also discusses tone. He references the Strunk and White rule, “Omit needless words” but also notes that White concedes that when Abraham Lincoln wrote the opening sentence of the Gettysburg address, Lincoln could have exchanged “Four score and seven years ago” with “eighty-seven.” Good writing is a matter of tone, and not just slavish adherence to rules, he says. Kathleen Dillon Narko, the CBA Record’s longtime and current legal writ ing columnist, addressed good writing in transactional documents in June/July 2008. Contracts are filled with legalese (“Now, therefore, in consideration of the mutual representations, warranties, covenants and agreements…”). Why are they like that? Justifications include “that’s the way it’s always been done,” using an old template, why bother rein venting the wheel, fancy words sound impressive to the client, and so on. Dillon Narko says lawyers should con sider the effect of their language on others. Clients are bound by the document; they should understand it. Some tips from getting away from legalese in contracts include using the active voice (“The Buyer shall pay the purchase price”) and breaking down long sentences into tabulated lists. Similarly, in a September 2016 column Dillon Narko recalls influential legal writing advocate Richard Wydick’s Plain English for Lawyers , which directs, “omit 2008: Removing Legalese from Contracts

edges what “they” is referring to can be confusing, so the writer must make it clear at the beginning. See page number 44 for her further tips on this subject. Dillon Narko sums up: “Language should not be sexist and should not exclude a segment of our population. We appear to be facing a new shift in language. Many proponents of gender neutral pronouns stress we should respect those who do not identify with binary gender. Language is a good place to start.”

2019: Appearance Matters The look of our documents also has evolved. Many of our habits are left overs from the typewriter era and deserve updating. In a November/December 2019 column, Dillon Narko addressed this topic, noting that font type, white space, alignment, italics, and more, come together to engage readers and keep their attention. The Seventh Circuit Court of Appeals, in its Requirements and Sugges tions for Typography in Briefs and Other Papers, which can be found on its web site, notes that professionals should use all tools at their disposal for persuasion. “Choosing the best type won’t guaran tee success, but it is worthwhile to invest some time in improving the quality of the brief ’s appearance and legibility.”

Narko, she elaborated that people seem ready to use “they” when that is a per son’s preferred pronoun. “It’s a respect issue, a rights issue—are you using the pronoun they prefer?” She acknowl

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