This article is reprinted with permission from the June 28, 2002 edition of the New York Law Journal. © 2002 NLP IP Company. All rights reserved. Further duplication without permission is prohibited. 

The Elements of Legal Style (Second Edition)

By Bryan A. Garner.

Oxford University Press, New York, N.Y. 288 pages, $30.

Reviewed By Phil Schatz
New York Law Journal

"Legal writing shouldn't be lethal reading," declares Bryan Garner in his "The Elements of Legal Style," the legal-writing counterpart to Strunk & White's classic The Elements of Style. Now in its second edition, Professor Garner's "Elements" belongs, along with his Dictionary of Modern Legal Usage (the counterpart to Fowler's Modern English Usage), on every lawyer's shelf of essential writing aids.

What makes for good legal writing? According to Mr. Garner, there are two primary rhetorical traditions, which he labels the Attic (or classical Greek) and the Asiatic. The great Roman lawyer Cicero was master of both traditions. The Attic style - active, direct and forceful - is exemplified in the American legal tradition by Oliver Wendell Holmes. The Asiatic style - elaborate, syntactically complex and flowery - is exemplified by Benjamin Cardozo. The better tradition, for most writers, is the Attic. The Asiatic style is largely innate, but the Attic style can be learned and sounds better to the modern ear. As a result, Mr. Garner advises that "[b]efore experimenting with the showier qualities in writing, [lawyers should] master the art that conceals art: try to be direct, simple, lucid, and brief."

These Attic virtues permeate the book, with a pronounced emphasis on clarity, Mr. Garner's prime directive. Many of the rules are common currency - be brief; write in the active voice; avoid euphemisms. Others are more controversial, such as the rule permitting contractions (forbidden in the "First Edition") and the rule relegating case citations to footnotes (Rule 4.11). Mr. Garner and Judge Richard Posner debated this last rule in the Summer 2001 Court Review. Mr. Garner believes that putting citations in footnotes improves readability by omitting unnecessary material and exposing the text to thorough editing. Mr. Posner approves the goal but counters that footnotes are more distracting than helpful. Mr. Posner likely has the better argument here - if it doesn't belong in the text, it doesn't belong in the document - although Mr. Garner's position might be worth trying. (He and Mr. Posner would agree that the most common use for footnotes - to keep collateral arguments that the writer is too timid to trash or to meet a court-imposed page limit - are improper).

Mr. Garner's Rule 7.5 - "sharpen your reasoning by summarizing your writing up front, with just the amount of particularity that a generalist would need" - would revolutionize legal writing, if generally employed. He calls this his "deep issue" technique. His model for the proper framing of a question presented deviates somewhat from conventional practice: he recommends using multiple sentences, interweaved with facts, in chronological order, using no less than 75 words, with the final sentence flowing directly from all that precedes it.

To use one of Mr. Garner's examples, contrast this question presented:

Whether Mayor Frye is precluded from voting on Resolution 8308-01?

with this:

The California Political Reform Act prohibits a public official from participating in a decision in which the official has a material financial interest. Georgette Frye, the mayor of Monrovia, California, owns two office buildings in downtown Monrovia. The City Council is now considering a resolution to provide a new sewer system for the downtown area. Is Mayor Frye prohibited from voting on the resolution?

Now, most of us would not have written the first question presented, which is obviously defective. But I doubt that many of us would have written the second, either, because of the ingrained habit of beginning the question with a whether and putting everything in one sentence. Professor Garner says to dispense with these habits, and he is right.

The deep-issue model works the double benefit of improving both thinking and writing. Practice with this rule would shorten legal briefs (and book reviews) and greatly enhance their readability. If you tend to write before you know what you intend to say, as I do, you will benefit from Mr. Garner's deep issue technique. This section, by itself, is worth the price of the book.

Another worthwhile section, not readily available elsewhere, is Chapter 6: Rhetorical Figures in the Law. In this section, Mr. Garner describes major rhetorical figures (grouped under the categories of "comparison," "wordplay," "syntactic arrangement" and "repetition"), illustrated by quotes from acknowledged master stylists such as Holmes, Cardozo, Karl Llewellyn, Henry Friendly and Robert Jackson. The generous helping of examples reflects the simple truism that a good writer is a good reader and that the best way to improve writing style is to spend some time with a great writer. (And not necessarily a legal writer; Twain's short essay "Fenimore Cooper's Literary Offenses" and Lincoln's "Notes on the Practice of Law" should be required reading).

I have some quibbles. Mr. Garner thinks the modern trend toward puns (paronomasia) in law review titles can be "delightfully clever." (He is entitled to that opinion). He would purge legal writing of all its Latin and French legalisms. (Give up "seriatim," "arguendo," and equitable maxims? And reduce my hourly rate?). And, very rarely, he sometimes commits the same fouls that he counsels against, such as cliches ("Yet in their brevity they capture the soul of wit") and unnecessary words ("The qui tam action at issue here" instead of "This qui tam action"). (Please ignore any such errors in this review).

These quibbles aside, every lawyer should buy and use "Elements." Although many of the rules are available elsewhere, no equivalent text comes close to being as accessible for day-to-day reference. This is easily the most useable stylebook on the market today. In addition to its exemplary 27-page index (Mr. Garner spent his own money to ensure the completeness and correctness of his index, a model of a too-often neglected form), the table of contents is reproduced on the interior of the front and back covers. Although "Elements" does not supplant Strunk & White or Fowler, its greater ease of use and focus on legal style make it an essential addition to every lawyer's library.

For many readers of this review, the question is not whether to buy "Elements," but whether to upgrade from the "First Edition" to the "Second." By all means, get the upgrade. Although substantive changes are few - there is only one rule reversal (contractions) and only one major addition (the interesting, if not essential, Appendix concerning style) - the typography and layout are substantially improved and now mirror the usage in the Oxford English Dictionary. For a book that will be consulted frequently, such improvements are no minor thing. Any lover of the Attic virtues of simplicity, readability, and elegance should get the "Second Edition."

Phil Schatz is a member of Wrobel & Schatz.