The essay below was presented at the 1993 New Zealand Law
Conference, Wellington, published in The Law and
Politics: 1992 New Zealand Law Conference. Conference
Papers, vol. 2 (1993): 210–216, and reprinted as below in
The Judicial Review: Journal of the Judicial Commission of
New South Wales, 3 (September 1997): 153–161.
Spelling and punctuation reflect Australian usage.
Katherine Mansfield (1888-1923) was one of New Zealand’s
most famous writers.
Writing To Be Read or
Professor James C Raymond
Why Can't Lawyers Write Like Katherine Mansfield?
Not too many years ago, I found myself at a table in a seedy
bar on a less than glamorous stretch between Miami and Key
Largo. Sitting across from me was Judge Jack Burgher from
The judge was not happy. He had signed up for the
conference, imagining sunny Florida weather and endless
rounds of golf. But it had rained everyday. The nearest
course was more than an hour away. Now he was hunched over a
table, listening to me, an English teacher who does not even
have a law degree, criticise a judgment he had written.
"This is good." I said, referring to his narration of the
facts. "It reads like a story." A used car dealer suing
another used car dealer for fraud. They deserve each other,
"And this is good, too." I said, referring to a passage
about welding the undamaged halves of two wrecked Hondas
together, but imperfectly. Burgher had made it easy to
follow, even for someone who knew nothing about the
underbodies of cars.
"And here, you're writing like a normal human being." - a
phrase I use whenever judges and other lawyers manage to
avoid the "saids", "sames", "hereinafters" and convoluted
syntax they pick up in law school, like parasitic viruses
few ever expel.
"But here," I said, with some hesitation,
"you're writing like a judge."
Burgher knew it was not a compliment. When he rose from the
table he towered over me in a way that might have been
threatening if he had not worn such an injured expression on
his face. "I write like a judge, Professor Raymond," he
said, "because, by God, I am a judge."
The conversation ended and so did the course. But the
exchange raised an important point for anyone trying to
learn how to write.
Writing is always an act of creating a voice. It is sounding
like "somebody" on paper. It is creating a character. I
wanted Judge Burgher to sound like a journalist, writing
about the law for an audience that includes non-lawyers. But
the voice he preferred was that of the legal expert. He felt
comfortable with a certain formality of style, a reliance on
legal jargon, and though he was too kind to admit this, a
disdain for non-lawyers.
On paper, legal experts often" sound" like this—
"In resolving the question whether, and how, to count
ballots not marked by voters in accordance with
instructions, so that the intent of the voter is unclear, we
have said that 'if the intent of the voter can be determined
with reasonable certainty from an inspection of the ballot,
in the light of the generally known conditions attendant
upon the election, effect must be given to that intent and
the vote counted in accordance therewith.'"
Of course, they do not sound like this when they speak to
their families. They would never say, "pass the salt please,
and the pepper therewith". They do not use legalese in love
letters. They would never write "My dearest spouse
(hereinafter called honeylips)". And they could not possibly
speak in sentences as long as those they write—not without
pausing to inhale.
But when lawyers are in their chambers, writing contracts or
briefs, they are transformed, like actors, into different
personalities. Their choice of words and the structure of
their sentences suggest a certain kind of person behind the
words. They write things like this—
"The Government's concern lest the Act be held to be a
regulation of production or consumption rather than of
marketing is attributable to a few dicta and decisions of
this court which might be understood to lay it down that
activities such as 'production','manufacturing', and mining
are strictly 'local' and, except in special circumstances
which are not present here, cannot be regulated under the
commerce power because their effects upon interstate
commerce are, as a matter of law, only indirect."
—and we know instantly that the author is not Katherine
The convener of this conference, Tim Castle, has indicated
his hope that the speakers would stimulate "debate, even
controversy". In this spirit, I raise the question in my
subtitle: Why Can't Lawyers Write Like Katherine Mansfield?
Of course, the question could be used to taunt professionals
in many fields, including my own. Few people can write like
But there is one quality of her writing that lawyers would
do well to imitate: her accessibility to the widest possible
audience, an accessibility that in no way compromises the
quality of her art. In his introduction to The Short Stories
of Katherine Mansfield, John Middleton Murry recalls how
Mansfield regarded it as a "moment of triumph" that
'Prelude' was appreciated by the printer who set its type.
According to Murry, who was Mansfield's husband as well as
her editor, "It was characteristic of her that she preferred
the praise of simple 'unliterary' people to that of the
cultured and the critics".
It would be unrealistic to hope that professionals in every
field— physics, medicine, cybernetics, engineering—would
reach the laity in their writing. It would, in fact, be
extremely inefficient if microbiologists and tax accountants
had to pause to define every term not well known to the
people who print their publications.
But law is different.
Much of what lawyers write—contracts, statutes, judgments,
decrees—has the laity as its ultimate audience. Lawyers,
like journalists and teachers, have reason to break out of
their closed circles and write, as Katherine Mansfield did,
for everyone who can read.
It is not the poetic quality of Mansfield's prose that I am
suggesting as a model. Indeed, Mansfield's prose is rarely
adorned. Her effusive description of a New Zealand landscape
in 'Millie' is uncharacteristic —
"The sun hung in the faded blue sky like a burning mirror,
and away beyond the paddocks the blue mountains quivered and
leapt like sea."
For the most part, Mansfield's prose seems so natural, so
unaffected, so much like conversation written down, that one
is hard pressed to define what makes it compelling —
"Millie stood leaning against the veranda until the men were
out of sight. When they were far down the road Willie Cox
turned round on his horse and waved. But she didn't wave
back. She nodded her head a little and made a grimace. Not a
bad young fellow, Willie Cox, but a bit too free and easy
for her taste. Oh, my word! It was hot. Enough to fry your
In isolation, each sentence seems quite ordinary. But in the
classical tradition (ars est celare artem), it is the
apparent artlessness that conceals her art. Murry commented
on this quality of her work. "Her secret died with her," he
wrote in his introduction. "And of the many
critics who have tried to define the quality in her work
which makes it so inimitable, everyone has been compelled to
give up the attempt in despair."
Her secret was an alchemy that transforms ordinary
conversation. She has larger secrets as well. But on the
level of individual sentences, her writing seems like
conversation. It is spare. Every detail counts. It is free
of jargon and clichés. It exploits everything good about
conversational English - its accessibility, its naturalness,
its simplicity of syntax - and avoids the false starts,
wordiness and bumbling irrelevances that make real
conversation, accurately transcribed, an absolute bore to
read. Her prose is not esoteric. Printers can understand it.
And taxi-drivers, and sales clerks, and school children if
they are so inclined. It is equally accessible to artists,
professors and lawyers.
The problem with much legal writing is that it imitates the
least desirable aspects of spoken English and avoids the
most desirable. For this reason, legal writing may be
criticised, with equal justification, for being too much and
too little like spoken English.
One virtue of spoken English is its lexicon, which is
generally simple and ordinary - a social constraint keeps us
(I would hope) from dropping nunc pro tunc into our cocktail
conversations. It would be pedantic to say to a real person,
face to face, "The pie is great; have you tried same?" But
when lawyers write, they feel free to wax pedantic, perhaps
because they do not have to look their readers in the eye.
They feel free to write "inter alia", when in ordinary
conversation they would probably say "among other things".
Legalisms give legal writing an arcane odour - like the
smell of old books, not entirely unpleasant, but not exactly
inviting. Legal jargon is quaint, but (with a few notable
exceptions) it serves no purpose. And it distances the law
from people who need to understand it.
Spoken English also differs from good prose in its syntax.
Because we have so little time to plan our speech, we
generally stick to simple, straightforward, short syntactic
paths. When we deviate from these paths, we generally wander
into syntactic thickets. Oddly enough, good writers - not
just literary writers like Katherine Mansfield, but good
journalists as well - tend to use basic syntax. Simple
sentences are the norm. Subordinate clauses generally occur
no more than once in a sentence, rarely more than twice.
When the need for a longer sentence arises, however, good
writers can plan them carefully, so that they can be
followed easily, like paths in a pleasant garden. The second
sentence in 'Miss Brill' (41 words) is a fine example —
"The air was motionless, but when you opened your mouth
there was just a faint chill, like a chill from a glass of
iced water before you sip, and now and again a leaf came
drifting - from nowhere, from the sky."
In print it seems as natural as breath. But as soon as we
read it aloud - as soon as we try to imagine ourselves or
anyone else spontaneously uttering this sentence - we become
aware of its artifice. No one is likely to utter this
sentence, say, between two sips of tea on a Sunday
afternoon. Nor do we have to turn to literary models to
discover sentences of this sort. Examples abound in any good
When lawyers write long sentences, they seem less like
garden paths than jungle trails, interminable, branching off
in bewildering directions. Here, for example, is a proposed
amendment to the Constitution of the State of Alabama. Only
lawyers could have produced it. Imagine yourself finding
this amendment in small print along with many other items on
a ballot, when you have taken a few moments from work to
vote, and behind you in line are equally hurried people
awaiting their turn —
Amendment Number Four
"To amend the constitution of Alabama of 1901 by authorising
legislation to permit municipalities and counties to provide
for the redevelopment and revitalisation of areas within
their corporate limits or boundaries by creating tax
increment districts; to provide for the payment of all
increased ad valorem taxes resulting from such redevelopment
or revitalisation to the municipality or county which
created the district until any indebtedness incurred with
respect to such project has been paid; to provide that no
such payment shall be made to the extent that it jeopardises
the payment of any bonded indebtedness secured by any tax
applicable in the proposed district with respect to any such
project; to provide that any such indebtedness shall not
constitute a charge against any constitutional debt limit if
it is payable solely from such increased ad valorem taxes;
to ratify and approve legislation adoption in furtherance of
the powers hereby conferred." (Proposed by Act No 87634)
There is, of course, no way of knowing how Mansfield would
have written this amendment. But it seems likely that her
version would be more like the brief translation that was
printed in the Tuscaloosa News one day after the election —
"Amendment Four would allow city and county governments to
issue bonds to revitalise slum areas and recover the
investment through increased property taxes."
It would be equally speculative to suggest how Katherine
Mansfield would have re-written the sentence about defective
ballots, cited earlier in this paper. Chances are, however,
that she would have reduced the essence of its 75 words to,
perhaps, 16 —
"We have already said that defective ballots should be
counted if the voter's intent is clear."
The problem with many legal sentences is not that they are
too long. Sentences can be both long and clear, if they are
carefully constructed. When Mansfield writes a long
sentence, she sets it out like a plate full of individual
hors-d' oeuvres, each phrase a tidbit with a toothpick of
Here is an example from 'The Canary' — 74 words, in which
the narrator describes her deceased pet —
"For instance, when I'd finished the house in the afternoon,
and changed my blouse and brought my sewing on to the
veranda here, he used to hop, hop, hop from one perch to
another, tap against the bars as if to attract my attention,
sip a little water just as a professional singer might, and
then break into a song so exquisite that I had to put my
needle down to listen to him."
One sign of a well crafted long sentence is that the phrases
between commas seem to be additions, not qualifications. Its
phrases and clauses are short and self contained, often
followed by commas that could be properly replaced by
periods if the writer had chosen to do so. This is the
characteristic structure of modem prose. Subordination is
relatively rare. Long sentences are rendered readable by
structures that include either parallelism or frequent
points of closure.
At this point, it is easy to make a few rules for lawyers
who want to write for the largest possible audience.
Avoid legal jargon whenever possible. It is not always
possible of course. There is no handy equivalent for habeas
corpus in ordinary English. But otherwise, use English
instead of Latin or old French. And use ordinary English in
an ordinary way. "Said", "same" and "such" never add
precision. They just call attention to themselves.
Write short sentences. Mansfield's sentences are
generally quite short: the average length in 'The Garden
Party', perhaps her most celebrated story, is 9.39 words.
When you write a long sentence, construct it
"cumulatively". In other words, make sure it comes to a
possible stopping point early on - usually marked by a comma
that could be replaced by a period. And make sure that
phrases after that point are relatively short and separated
by commas that could also be replaced by periods. Here is an
example from 'The Garden Party' —
"'That's right, miss,' said the tallest of the men, a lanky,
freckled fellow, and he shifted his tool bag, knocked back
his straw hat and smiled at her."
These rules apply to all sorts of legal writing: wills,
contracts, statutes, decrees and briefs. And they are
relatively easy to follow. When followed, they result in
clear, inviting prose that lawyers find accurate and
everyone finds easy to understand, like this opening
paragraph from a Canadian judgment written by the Honourable
Ken Halvorson —
"Last spring Ralph Cook set his nets in the Saskatchewan
River, near Cumberland House, just as he had for many years,
but this time, in breach of the law, he failed to write his
license number on the stakes securing the nets. Instead, he
mistakenly inserted his fisherman number.
He was convicted of improperly marking his nets contrary to
s 27(2) of the Saskatchewan Fishery Regulations
(S0R/79-486): Canada Gazette, July 11, 1979 passed pursuant
to the Fisheries Act 1970 RSC c F-14."
Halvorson's sentences, like Mansfield's, seem unremarkable
in isolation. In his sentences, as in hers, the artifice is
The first sentence, for example, is fairly long - 42 words.
But Halvorson's sentence, like Mansfield's, consists of
additive phrases set off by commas that could be replaced by
periods. Grammatically, the sentence could end after
"River", "Cumberland House" or "years".
The second sentence is remarkably brief - seven words.
The third sentence does have legal paraphernalia. But it is
necessary paraphernalia, and therefore exempt from the first
of our three rules. Moreover, Halvorson artfully appends the
citation where it should be, at the end of a sentence, where lay readers
can skip it and lawyers too, except those who need the
reference for research or verification.
This is an example of what I mean when I argue that lawyers
should write like Katherine Mansfield. It provides useful
information for readers trained in the law. It does not
sacrifice legal precision. It has no unnecessary legal
jargon. It is accessible to the widest possible audience.
Halvorson's style is his own, but the technique of beginning
certain kinds of legal documents with a narrative could be
added to our list of rules.
When drafting a pleading judgment, always begin with a story.
Tell who did what to whom.
Of course, the story has to be told simply and in short
sentences. Tell who did what to whom - not the legal
consequences thereof or the various interlocutories and
hearings held thereafter. Here, for example, is a story of
sorts, but told in a way that no-one but lawyers can
"This is an application by three inter-related plaintiffs
against two related defendants (the second defendant having
been joined at the commencement of the hearing without
opposition) seeking an interim injunction against the
defendants, their agent, servants or employees, restraining
them from using the word 'Regal' upon or in relation to
paints; or a trademark so nearly resembling Regal as to be
likely to cause confusion between the plaintiff's products
and the defendant's product, and more specifically for an
injunction to prevent the use of the word, Regal, or. any
word confusingly similar there to by the defendants upon
paint containers, advertising materials, signs, packaging,
fascias, stationary, labels or other printed matter."
Many lawyers find this sentence clear. Those who prefer a
Mansfieldean aesthetic, however, will not be happy with it.
It violates all the rules. It is long and ungainly. The
diction is hardly conversational.
The remedy is not to revise the sentence, but to start all
over. Tell the story. In this case, the story is about two
paint companies using the same trade name. The plaintiff,
which had been using the name "Regal" for many years,
is seeking an injunction to prevent another company from using
"Regal" as a trademark for its paint.
In writing this paper I have been pretending that lawyers
really could write like Katherine Mansfield if they wanted
to, simply by following a few simple rules. But Mansfield's
art subverts law, as literature often does. Law seeks
closure; literature thrives on ambiguity. Law assigns blame;
literature, for the most part, provides understanding. When
Katherine Mansfield writes about a murder in 'A Woman at the
Store', we sympathise with the woman who kills her husband -
not forgiving her necessarily, just understanding. We
understand, too, what drives 'The Child-Who-Was-Tired' to
infanticide. It is her foster parents who deserve
prosecution, but we doubt the law will see it that way. And
when the "little blue men" come running to rescue Pearl
Button from her kidnappers, we perceive them as intruders
rather than rescuers. We have been lured into the radically
innocent point of view of the kidnappers and of Pearl Button
herself. In these short stories, though, there are writing
lessons to be learned, certainly for defense attorneys, and
possibly for anyone else who would like the law to be more
sensitive to the nuances of human experience than the
adversarial system generally allows.
The decision to write the sort of prose that Ned Halvorson
and Katherine Mansfield write is choice, not an obligation.
Mansfield was, after all, born in the same year as TS Eliot
and six years after James Joyce - writers who, for various
reasons, chose to limit their audiences. Many lawyers, for
reasons of their own, choose to write for other lawyers
only, like my friend Judge Burgher from Pittsburgh.
How could lawyers learn to write clearly if they chose to?
By incessant scrutiny and revision. By refusing to write
even a single word that would seem odd in a big city
newspaper. By preferring short sentences, and carefully
structuring the long ones. By foregrounding the story when
there is a story to be told. By avoiding pontifical diction
and technical or archaic words. By assuming the role and
voice of a journalist communicating with friends and
neighbours in the community, not the mannerisms of an expert
addressing a coterie.
And perhaps by imagining Katherine Mansfield as a reader,
maybe even keeping her photograph on the writing desk, and
trying not to make her wince.