By Steve Thorpe
Legal News
The author of a new book on language and its role in the law believes that laughing while you learn can make the lesson more effective.
“I try to have fun, but these are serious issues,” author Mark Cooney says. “There are real world implications that need to be on a lawyer’s radar.”
The language of the law is the subject of “Sketches on Legal Style,” a new book by Cooney, a professor at Thomas M. Cooley Law School’s Ann Arbor Campus. The book is a compilation of columns and essays he has written for law publications, as well as some previously unpublished material.
Each chapter of the book uses common sense — and usually humor — to illustrate and explain some important aspect of English as employed by legal professionals.
“It was an opportunity to share ideas in a way that would be fun,” Cooney says. “I know how busy practicing lawyers are and that they often don’t have the luxury to sit down and read for pleasure. I love the opportunity to write a short piece that might brighten their day for a few minutes and also share helpful information on legal writing.”
Cooney employs whimsical characters drawn from classic literature or pop culture to drive home his serious points. For example, Ebenezer Scribe is visited by four ghosts and Colonel Ketchup (remember the game “Clue”?) scuttling a murder investigation with his persistent use of the passive voice. And let’s not forget superhero Editor Man as he battles a terrifying foe: an impenetrable block of statutory text containing, among other things, a 142-word sentence
Although Cooney often uses the absurd to make his point, he backs up his grammatical contentions with solid facts, such as the unfavorable mention of the passive voice in more than 750 court documents, including a rather whiny complaint by the U.S. Supreme Court that “… (the passive voice) can make the meaning of a statute somewhat difficult to ascertain.”
Cooney teaches “Research and Writing” as well as “Advanced Writing” at the law school. He constantly reminds students that the quality of their writing will be one of the first things noticed when they’re thrust out into the increasingly competitive world of the law.
“I tell students that when they get to a law firm, the fastest way to prove their mettle is to write well,” he says. “You are often a ghost writer and partners of the firm are going to sign their name to what you’ve written.”
Before entering academia, Cooney spent 10 years in private practice and specialized in civil appeals. He successfully briefed and argued appeals in the Michigan Supreme Court, the Michigan Court of Appeals, and the United States Court of Appeals for the Sixth Circuit.
Cooney has also been active in language education efforts in the legal community for many years. He is editor in chief of The Scribes Journal of Legal Writing and also served as an associate editor for four years. He has chaired the State Bar of Michigan’s Appellate Practice Section and has served as a plain-language consultant on the State Bar’s Standing Committee on Standard Criminal Jury Instructions. He is also a founding board member for the Michigan Supreme Court Historical Society’s Advocates Guild. Cooney is also a frequent contributor to the Michigan Bar Journal’s “Plain Language” column.
Cooney argues that legal writing is about the art of persuasion and that making yourself understood is the key.
“You can’t do it without clarity,” he says.
So it can be annoying, to both Cooney and the reader, when some lawyers insist on shoveling obscure and archaic words into their writing. “Heretofore” is one of his targets.
“Antiquated language builds a wall between writer and reader,” he says. “As a writer, I’m supposed to be communicating. It all boils down to how do you persuade someone who’s struggling to understand what you’re saying. Clarity has to be the essential bedrock.”
Having toiled in the fields of law practice himself, Cooney knows firsthand the challenges attorneys face every day.
“It’s a challenge for lawyers facing rapid fire deadlines to craft something polished,” he says. “I remember from my practice days that not every brief can be your best brief. Having said that, I do think lawyers might do better if they stopped and remembered that they’re professional writers.”
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