The Future of Legal Writing

(Excerpt from a larger article,
“Future Predictions About Legal Writing: Redundancies and Musings”)

by Kenneth Bresler
Scribes Journal of Legal Writing 2014–2015

[T]he evidence must be admitted not only for its relevance to the defendant’s character and past history but also for its relevance to a prediction about his future behavior.

             – Justice John Paul Stevens, dissenting in Franklin v. Lynaugh¹

I have musings about the future of legal writing, which I start this article with, and musings about the present too, which follow soon. For example, in the future, will software detect the redundancy of past history or a reference to predicting the future, as in Justice Stevens’s dissent?

I’m a lawyer, not a futurist, and I’m not steeped in the conventions of futurists. But nobody seems to be writing about the future of legal writing. So I’ll step in.

Looking Forward

The larger English language will continue to evolve. That’s one reason why William Shakespeare’s English, four centuries old, is hard to understand. Said Hamlet to Horatio in a well-known graveyard scene, “[W]hy may not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks?”² I’m not talking about the difficulty of understanding quiddities and quillities. Look at tenures. The word isn’t strange to our contemporary ears, but do you know what it means in that context? We can’t be sure, without delving, that even tricks meant then what it more or less means now.

Even Mark Twain’s English is slipping into the past. Consider this account from Capitol Hill, published in the Chicago Republican on February 8, 1868: “I was standing, all by myself, in the Committee room, reading a vast law book . . . and wondering also at the bewildering tautology of the said aforesaid book aforesaid, when a youth to fortune and to fame unknown, flourished in the most frisky way, and came to a halt before me.”³ We can kind of understand his description of the youth – but only kind of.

Legal English continues to evolve too. (The absence of a comma before too in the previous sentence is intentional. More on that soon.) We can dispute the originalist way of interpreting the U.S. Constitution – what did the Framers intend two centuries ago? — but we cannot dispute that the Framers, and Americans of that generation, used words differently than we do.

In 2014, the U.S. Supreme Court interpreted the Constitution’s two-centuries-old Recess Appointments Clause. That clause authorizes the president “to fill up all Vacancies that mayhappen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”⁴ In NLRB v. Canning,⁵ the Court examined the meaning of Recess, Session, and Vacancies that may happen.

Justice Scalia wrote a concurrence (although a dissentious one, concurring only in the judgment) that relied on definitions in Samuel Johnson’s A Dictionary of the English Language from 1773, Noah Webster’s American Dictionary of the English Language from 1828, and The Oxford English Dictionary from  1989 – the last because it cited sources from the eighteenth and nineteenth centuries for relevant definitions. He wanted to know what key terms in the Recess Appointments Clause meant over 200 years ago.

Justice Scalia wrote that “the partisan tables are turned” and that “[t]he tide seemed to turn . . . in the mid-19th century.”⁶ Over 200 years from now, will people still be turning those phrases? Will they be able to understand them?

The evolution of legal language is reflected in the tenth edition of Black’s Law Dictionary, which appeared in 2014. But keep your earlier editions. You may need them if you live long enough or the language changes rapidly. In two centuries, or even in a half-century, judges and scholars may need to consult early-twenty-first-century dictionaries, legal and nonlegal, to understand Canning. What did the Supreme Court mean by using trigger as a verb? What’s upshot and C-SPAN coverage?⁷

The Court discussed “resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.”⁸ If, in a future world, people no longer vote in person, online voting has already been discarded, and people can opt out of candidates selected for them by algorithm – opt out by activating their implanted voting chips – how many will understand what a ballot box is? Justice Scalia, in his nominal concurrence, wrote, “The Constitution is not a road map for maximally efficient government . . . .”⁹ In the twenty-third century, lawyers may wonder, “What’s a road map?”

Some references to technology in legal writing are already dated. In 2005, Judge Richard Posner began an opinion this way: “At the risk of sounding like a broken record, we reiterate our oft-expressed concern . . . .”¹⁰ That was one of the last references in a legal decision to a broken record in a world that had moved beyond stereo records and had begun to move beyond compact discs.

Where else will the English language go, and legal language with it? I think we’ll lose the comma before too, the hyphen in email (some courts dropped it in the first years of the millennium), and the space in health care.

Some use of punctuation or language that is considered nonstandard or even blatantly incorrect could become acceptable in several decades. For example, they could become the singular personal pronoun. Consider the sentence “Each lawyer has their own writing style.” We talk that way all the time, but many, if not most people, consider it wrong in writing; it lacks noun–pronoun agreement. Each lawyer is singular, and their is plural.

I’m not predicting whether or when they and their will become singular pronouns in legal writing. I’m suggesting that some nonstandard punctuation and language will become acceptable.

The distinction between verbal and oral is just about gone. (Verbal communication uses words, written or spoken. Oral communication is spoken.) Verbal and oral are not synonyms but lawyers and judges use them that way.¹¹ If you care about the distinction (I do), you’ve (we’ve) just about lost the battle. Meanwhile, the word literally is losing its literal meaning and is becoming an intensifier, similar to very or really. In a few decades, this new meaning may take over.

Right now, the distinction between different words is beginning to get lost. Some words’ meanings are starting to change. The process is so early with some distinctions and meanings that we haven’t noticed yet. But eventually, these blurred distinctions and changed meanings will be like literally in transition — and then like oral and verbal — fairly well established. The process has begun; it’s always happening; we just don’t know yet with which words.

Legal writing may get breezier. This is an excerpt of a 2014 dissent by Chief Justice Roberts: “Not very likely.”¹² “Well, he’s a Supreme Court Justice, and I’m not,” you might say. “I’m not allowed to write like that.”

But some breezier judges’ style might trickle down. And a lawyer who wishes to write more conversationally can search in an opinion for a colorful phrase or expression and quote it. For example, a lawyer could rebut an argument with this: “‘Not very likely.’ Kaley v. United States, 134 S. Ct. 1090, 1114 (2014) (Roberts, C.J., dissenting).”

Legal writing has gotten breezier. That’s one point of blogging, a new genre of legal writing. “Incisive analysis is not restricted to law review articles. The immediacy and informality of law blogs (or blawgs) have upended traditional norms in the law, as social media have in every other field of human endeavor,” said David Harlow, a lawyer who blogs at HealthBlawg.com.¹³ Thomas Bruce, director of Cornell’s Legal Information Institute, noted, “There are now entire parts of the CFR where the table of contents looks like the table of contents for an FAQ, because all of the entries are in question form.”¹⁴

Stuart A. Forsyth, who runs the website LegalFuturist.com, wrote:

What we know as ‘‘writing’’ will become more visual. Humans absorb and understand visual information much faster than textual information, and lawyers will come to understand and use that as technological tools are developed to facilitate their doing so. Indeed, book and film may merge into a form yet to be named. Books and film will not disappear, but something new may appear.¹⁵

Legal “writing” already includes photographs (e.g., the appendixes in the 2011 Supreme Court case of Brown v. Plata¹⁶), graphs (e.g., Justice Sotomayor’s dissent in the 2014 case Schuette v. BAMN¹⁷), and maps. A marked-up aerial photograph resembling a map appears in the appendix to the 2014 Supreme Court case United States v. Apel.¹⁸ What’s next? A court opinion with a link to the court’s website – and a video appendix?

I don’t want to discuss legal forms and software extensively. The field is changing rapidly, and I don’t want to write a software review. In addition, I can’t seem to get the forms companies and software companies to discuss their capabilities. The salespeople (the tactical people, if you will) don’t want to talk to someone who’s interested in talking but not buying (me), and the people on the business side (the strategic people) are remarkably insulated from contact. Executives at one well-known legal-forms company cannot be reached by email and will not return phone calls, at least not mine. Even the public-information office won’t call me. I say this not out of pique but to explain that I’m aware of legal forms as one front in the future of legal writing. I just don’t have much to say about them here.

The wide availability and use of electronic and computer-assisted forms might reduce the need for legal writing – or increase it. Just because a company has provided a form written with legalese and in the passive voice does not mean that lawyers should accept it. They might have to rewrite the form. The website of one well-known company selling computerized legal products and services has such awkward writing that I doubt the quality of the writing it sells to customers.

Legal forms are not new. Electronic and computer-assisted forms are relatively new – but probably won’t revolutionize legal writing. Writes Forsyth, “Lawyers have automated repetitive tasks for decades; we call it ‘boilerplate.’”¹⁹

In the future, if not now, software will and should detect – and flag for your correction – apparent misuses of country when you mean county, interstate when you mean intestate, and statue when you mean statute. It will detect and flag redundancies, such as convicted felon, close proximity, armed gunman – and past history and future prediction.

Ron Dolin, who teaches legal technology and informatics at Stanford Law School, points out “the difference between synthesis and analysis. Analyzing text (message understanding, named-entity extraction, tracking citations, etc.) is much easier than synthesizing text (writing briefs, motions, contracts, etc.).”²⁰ Named-entity extraction is the process by which software recognizes names of entities and people, dates, dollar figures, citations, and so on in documents; extracts them; and organizes them.

“I think that you can expect to see a lot of progress on the analysis side, but the synthesis side is likely going to be decades,” says Dolin. “If anything, the law lags behind” other fields.²¹

Associated Press announced on June 30, 2014, that it would start writing articles about corporate earnings – without human writers. AP explained that for years, it spent many hours “crunching numbers and rewriting information from companies to publish approximately 300 earnings reports each quarter. We discovered that automation technology . . . would allow us to automate short stories –150 to 300 words – about the earnings of companies in roughly the same time that it took our reporters.”²²

A company named Automated Insights generates routine sports reporting. The Los Angeles Times has robots to write about earthquakes and homicides.²³

What does all that portend for legal writing? As Dolin says, technology to write briefs, motions, and contracts is likely decades away. Will legal writers be replaced by robots and software in the near future?

As Chief Justice Roberts said in a different context, “Not very likely.”²⁴

¹ 487 U.S. 164, 190 (1988).
² William Shakespeare, Hamlet act 5, sc. 1.
³ Mark Twain, Adventure with a Native of Kalamazoo — A Michigander at a Reception, Chicago Republican (Feb. 8, 1868), http://www.twainquotes.com/18680208.html.
⁴ U.S. Const. art. II, § 2, cl. 3.
⁵ 134 S. Ct. 2550, 2556 (2014).
⁶ Id. at 2605, 2613.
⁷ Id. at 2557, 2564, 2576.
⁸ Id. at 2577.
⁹ Id. at 2610.
¹⁰ Pasha v. Gonzales, 433 F.3d 530, 531 (7th Cir. 2005).
¹¹ E.g., Ohio v. Robinette, 519 U.S. 33, 35 (1996); United Steelworkers of Am. v. CCI Corp., 395 F.2d 529, 531 (10th Cir. 1968).
¹² Kaley v. United States, 134 S. Ct. 1090, 1114 (2014) (Roberts, C.J., dissenting).
¹³ Email interview with David Harlow, The Harlow Group (Aug. 24, 2014).
¹⁴ Email interview with Thomas Bruce, Director, Cornell University Legal Information Institute (July 24, 2014) (offering one example from the CFR at http://www.law.cornell.edu /cfr/text/32/part-37/subpart-B).
¹⁵ Email interview with Stuart A. Forsyth, The Legal Futurist (July 10, 2014).
¹⁶ 131 S. Ct. 1910, 1949–50 (2011).
¹⁷ 134 S. Ct. 1623, 1680–82 (2014).
¹⁸ 134 S. Ct. 1144, 1153 (2014).
¹⁹ Email interview with Stuart A. Forsyth, The Legal Futurist (Aug. 28, 2014).
²⁰ Email interview with Ron Dolin, Professor, Stanford Law School (July 25, 2014).
²¹ Id.
²² Paul Colford, A Leap Forward in Quarterly Earnings Stories, Associated Press (June 30, 2014), http://blog.ap.org/2014/06/30/a-leap-forward-in-quarterlyearnings-stories.
²³ Will Oremus, The First News Report on the L.A. Earthquake Was Written by a Robot, Slate (Mar. 17, 2014), http://www.slate.com/blogs/future_tense/2014/03/17/ quakebot_los_angeles_ times_robot_journalist_writes_article_on_la_earthquake.html.
²⁴ Kaley, 134 S. Ct. at 1114 (Roberts, C.J., dissenting).