The Art of Boring Legal Writing
I recently read an article about artificial intelligence (AI) computers drafting legal documents, mostly boilerplate language in contracts, but the use of AI in the legal field is rapidly expanding with it being able to gather data and analyze verdict decisions, for example. Computers are reviewing and analyzing law, predicting outcomes, and performing drafting duties. I could write volumes on this topic and its future impact on the legal field, but I want to focus on a part of the AI’s ability: writing.
When I started at the University of Houston Law Center in 2003, I entered with a Bachelor’s Degree in History and a Master’s Degree in Public History. I read a great many books and wrote a great many papers to earn those degrees. So, I thought I was a pretty gosh darn fine writer.
I submitted my first writing assignment in my Legal Research and Writing Course and received comments back from the professor. My first thoughts:
What the (expletive)!
Why are there red marks everywhere?
Where are the handwritten comments from the professor telling me what a stellar piece of prose I had submitted?
After all, I had been writing for years and always received outstanding comments and laudable grades. Clearly, this professor had left her reading glasses somewhere, right? Right? Nope.
You see, legal writing is very different than other types of writing. We all know this to some degree. Do you recall reading words such as “henceforth,” “theretofore,” “Party of the first part,” “Party of the second part,” and “Party of Five” (wait, that was a TV show). You get my point. It felt like lawyers purposely wrote so no one, but other lawyers, could decipher their language; hence lawyers got paid good money to translate from lawyer to understandable language
The legal profession has moved away from inundating their writing with fancy legal words to some degree. The current trend in the legal field is that anyone should be able to pick up a legal document and understand what the words say. A reader will still need an attorney to explain the law and those words that have specific legal meaning, but for the most part, non-lawyers have at least a fighting chance in understanding the words put in front of them.
The formality contained in legal writing may be waning, but why is legal writing so boring? Legal writing is meant to be repetitive, which is inherently boring. In fact, it is an art to be so consistently repetitive and hence boring. Going back to the law school paper example, I remember analyzing a particular law and writing something akin to:
“The law encompassed 3 parts. Each section of the law dealt with a crime. Within each provision of the law, there were elements that triggered criminal responsibility. These 3 paragraphs each contained different criteria the state had to prove to convict a defendant.”
I used the words “parts,” “section,” “provision” and “paragraphs” to mean the same thing. I used the words “elements” and “criteria” to mean the same thing. THIS IS A NO-NO. For lawyers, when we use a word, we mean that word, not a synonym of that word, but that word only. The word used has a specific meaning throughout a document be it a contract, memorandum, or law. A synonym has a different meaning (potentially). If an attorney uses a word to describe something, then uses a different word, our brain tells us something new is being conveyed. Using the same word conveys that we mean the same thing, even if we must use the same word a hundred times. Why? Why? Why? You ask? Using the same word or words reduces confusion, reduces misunderstanding, and reduces court fights over interpretation.
AI computers could certainly be used by attorneys to draft language that is repetitive or be used to review an attorney’s work product to ensure that the attorney uses the correct verbiage. Contract drafting is one such legal product that would lend itself to using this type of program. As the title to this article states, legal writing is not just rote throwing the same word or words on a piece of paper and walking away. There is an art to legal writing and while I have no doubt a computer can be as repetitive and boring as me, I doubt that it can truly draft a sophisticated, persuasive, legal argument that captures the essence of a case. For example, I believe a computer could analyze all the case law, analyze relevant statutes, ordinances, and regulations, analyze the facts of your case, and draft a stellar legal argument based on its algorithms. This may be enough for an attorney to win a case, but how does the computer account for the human element? The law does not always win the day. In 2015, the United States Supreme Court handed down the marriage equality decision in Obergefell v. Hodges. If the Court simply based its decision on the law, the Plaintiff would have lost; however, Justice Kennedy’s concluding paragraph of the majority’s opinion captures the human element when he wrote:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.”
When a computer can capture this type of emotion, it may be time to unplug.