Like other Americans, lawyers and judges most remember British novelist and essayist George Orwell (1903-1950) for his two signature books, Animal Farm and 1984. Somewhat less known is his abiding passion about the craft of writing. It was a lifelong passion,¹ fueled (as Christopher Hitchins recently described) by Orwell’s “near visceral feeling for the English language.”²

Orwell’s most exhaustive commentary about writing was his 1946 essay, Politics and the English Language,³ which minced no words. “[T]he English language is in a bad way,” he warned. “Debased” prose was marked by “abuse,” “slovenliness,” and a “lifeless, imitative style” that was nearly devoid of “a fresh, vivid, homemade turn of speech.” A “tendency … away from concreteness” had left writing “dreary,” “ugly and inaccurate.” “[V]agueness and sheer incompetence,” he said, “is the most marked characteristic of modern English prose.”⁴

Orwell’s 12-page essay diagnosed what he called the “decay of language,” and it offered six curative rules. The diagnosis and rules still reverberate among professional writers. More than 65 years later, Judge Richard A. Posner calls the essay “[t]he best style ‘handbook’” fora legal writers.⁵ Nobel Prize-winning economist Paul Krugman recently went a step further, calling the essay a resource that “anyone who cares at all about either politics or writing should know by heart.”⁶

If I were a law partner employing young lawyers or a judge employing law clerks, I would add Orwell’s essay to a list of reading recommended on the way in. If I were a young lawyer not required to read the essay, I would read it anyway.⁷

Orwell stressed that he was dissecting, not “the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought.”⁸ The narrower scope does not deprive legal writers because Justice Felix Frankfurter was right that “[l]iterature is not the goal of lawyers, though they occasionally attain it.”⁹ Orwell’s essay approached language as a tool for clear communication, an aspiration that defines what lawyers and judges do throughout their careers. “The power of clear statement,” said Daniel Webster, “is the great power at the bar.”¹⁰

As Orwell’s title intimates, the essay included criticism of political writing done by government officials and private observers. The essay’s staying power, however, transcends the political arena. By calling on writers of all persuasions to “simplify your English,”¹¹ Orwell helped trigger the plain English movement, which still influences legislators, courts, administrative agencies, and law school legal writing classes.

This article proceeds in two parts. First I describe how judges, when they challenge colleagues or advocates in particular cases, still quote from Orwell’s plea for clear expression and careful reasoning. Then I present Orwell’s diagnosis of maladies that plagued contemporary prose, together with his six curative rules and their continuing relevance for today’s lawyers and judges.

Today’s Judges

Take the Necessary Trouble. “[W]ritten English,” said Orwell in his essay, “is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.”¹²

In 2012, the U.S. Court of Appeals for the District of Columbia Circuit quoted this passage in National Association of Regulatory Utility Commissioners v. U.S. Department of Energy.¹³ The issue was whether the challenged agency determination violated the Nuclear Waste Policy Act of 1982, and the parties hotly contested the case with hefty servings of alphabet soup.

On page 48 of its 58-page brief, for example, the National Association argued that, “Although DOE has not disclaimed its obligation to dispose of SNF, it is undisputed that DOE currently has no active waste disposal program…. The BRC is undertaking none of the waste disposal program activities identified in NWPA § 302(d). Its existence therefore cannot justify continued NWF fee collection.”¹⁴

On page 24 of its 60-page brief, the agency countered that “[t]he plain language of the NWPA … provides the Secretary [of Energy] with broad discretion in determining whether to recommend a change to the statutory NWF fee. … In section 302(a)(2) of the NWPA, Congress set the amount of the NWF fee – which is paid only by utilities that enter into contracts with DOE for the disposal of their SNF and HLW….”¹⁵

The National Association of Regulatory Utility Commissioners panelunanimously struck down the challenged agency determination. Judge Laurence H. Silberman’s opinion quoted Orwell and admonished the parties for “abandon[ing] any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with” acronyms.¹⁶

Other decisions have also quoted Orwell’s call to “take the necessary trouble” to achieve maximum clarity. In Sure Fill & Seal Inc. v. GFF Inc., for example, the federal district court awarded attorneys’ fees to the defendant on its motion to enforce the parties’ settlement agreement. The court criticized both parties’ submissions. “Imprecision and lack of attention to detail,” wrote Judge Elizabeth A. Kovachevich, “severely dampen the efficacy of Plaintiff’s written submission to this Court. Equally unhelpful is Defendant’s one sentence, conclusory response that is completely devoid of any substance. Advocates, to be effective, must take the ‘necessary trouble’ to present the Court with coherent, well-reasoned and articulable points for consideration.”¹⁷

“At times,” Judge Kovachevich specified, “the Court was forced to divine some meaning from the incomprehensible prose that plagued Plaintiffs’ written objections. Lest there be any confusion, the Court graciously did so even though it could have simply refused to give the faulty objections any consideration at all. The Court would have been equally obliged to treat Defendant’s failure to provide meaningful response as a concession of Plaintiffs’ objections.”¹⁸

Like Soft Snow. Orwell held keen interest in politics, and his 1946 essay attributed “the decadence of our language” partly to political motivation. “[P]olitical language,” he wrote, “has to consist largely of euphemism, question-begging and sheer cloudy vagueness. … [W]ords fall[] upon the facts like soft snow, blurring the outlines and covering up all the details.”¹⁹

This passage appeared in Stupak-Thrall v. United States, a 1996 en banc decision of the U.S. Court of Appeals for the Sixth Circuit that carried no political overtones. The full court remained evenly divided on the question of whether the plaintiffs’ riparian rights may count as “valid existing rights” to which U.S. Forest Service regulations are subject under the federal Michigan Wilderness Act (MWA). The dissenter criticized his colleagues who favored affirmance of the decision below. “The interpretation of the ‘valid existing rights’ language in Section 5 of the MWA to mean that [plaintiff] has no rights that the Forest Service is bound to respect is a good example of the distortion of language decried by” Orwell’s essay.²⁰

Orwell’s Diagnosis

Orwell rejected the notion that “we cannot by conscious action do anything about” the decline of language, believing instead that “the process is reversible.”²¹ The essay’s capstones were his diagnosis of the maladies that afflicted writing, followed by his six curative rules.

Orwell diagnosed four “tricks by means of which the work of prose-construction is habitually dodged.”²²

Dying Metaphors.The English language, Orwell wrote, sustains “a huge dump of worn-out metaphors” that “have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.” He cited, among others, “toe the line,” “run roughshod over,” and “no axe to grind.” To make matters worse, “incompatible metaphors are frequently mixed, a sure sign that the writer is not interested in what he is saying.”²³

Operators or Verbal False Limbs. Orwell said that these devices cloud thinking because they “save the trouble of picking out appropriate verbs and nouns, and at the same time pad each sentence with extra syllables which give it an appearance of symmetry.” Among the shortcuts he assailed here were replacing simple, single-word verbs with phrases that add little if anything (beginning with “prove to,” “serve to,” and the like); using the passive voice rather than the active voice “wherever possible”; using noun constructions rather than gerunds (for example, “by examination of” rather than “by examining”); and replacing simple conjunctions and prepositions with such cumbersome phrases as “with respect to” and “the fact that.” “The range of verbs is further cut down by means of the ‘-ize’ and ‘de-’ formations, and the banal statements are given an appearance of profundity by means of the ‘not un-’ formation.”²⁴

Pretentious Diction. Orwell included words that “dress up simple statement and give it an air of scientific impartiality to biased judgments” (such as “constitute” and “utilize”); and foreign phrases that “give an air of cultural elegance” (such as “ancien regime” and “deus ex machina”). “Bad writers … are always nearly haunted by the notion that Latin or Greek words are grander than Saxon ones,” even though “there is no real need for any of the hundreds of foreign phrases now current in English.”²⁵

Meaningless Words. Here Orwell targeted art and literary criticism, and political commentary. In the former, “words like ‘romantic,’ … ‘values,’ … ‘natural,’ ‘vitality’ … are strictly meaningless.” In the latter, the word “Fascism,” for example, had “no meaning except in so far as it signifies ‘something not desirable.’”²⁶

Orwell’s Cures

Orwell believed that “the decadence of our language is probably curable” if writers would “let the meaning choose the word and not the other way about.” He proposed six rules. “These rules sound elementary, and so they are,” Orwell wrote, “but they demand a deep change of attitude in anyone who has grown up used to writing in the style now fashionable.”²⁷ The rules are worth contemplation from lawyers and judges who write.

1) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

Orwell discussed clichés that might entertain, divert, and perhaps even convince readers by replacing analysis with labels. “By using stale metaphors, similes and idioms,” he said, “you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself. … People who write in this manner usually have a general emotional meaning … but they are not interested in the detail of what they are saying.” He urged “scrapping of every word or idiom which has outworn its usefulness.”²⁸

In 2003, concurring Judge Stephen R. Reinhardt of the U.S. Court of Appeals for the Ninth Circuit cited Orwell’s first rule in Eminence Capital LLC v. Aspeon Inc., a securities fraud class action. The court of appeals held that the district court had abused its discretion by dismissing, without leave to amend, the first amended consolidated complaint for failure to state a claim. The panel reiterated, but rejected, the district court’s conclusion that the plaintiffs already had “three bites at the apple.”²⁹

Noting that the district court failed to identify or analyze any of the traditional factors that would have supported dismissal without leave to amend,³⁰ Judge Reinhardt cautioned against “the use of cliches in judicial opinions, a technique that aids neither litigants nor judges, and fails to advance our understanding of the law.” “Metaphors,” he explained, “enrich writing only to the extent that they add something to more pedestrian descriptions. Cliches do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depend on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us.”³¹

“The problem of cliches as a substitute for rational analysis,” Judge Reinhardt concluded, “is particularly acute in the legal profession, where our style of writing is often deservedly the subject of ridicule.”³²

2) Never use a long word where a short one will do.

This rule placed Orwell in good company. Ernest Hemingway said that he wrote “what I see and what I feel in the best and simplest way I can tell it.” Hemingway and William Faulkner went back and forth about the virtues of simplicity in writing. Faulkner once criticized Hemingway, who, he said “had no courage, never been known to use a word that might send the reader to the dictionary.” “Poor Faulkner,” Hemingway responded, “Does he
really think big emotions come from big words? He thinks I don’t know the ten-dollar words. I know them all right. But there are older and simpler and better words, and those are the ones I use.”³³

Hemingway was not the only writer who valued simplicity. “Broadly speaking,” said Sir Winston Churchill, “the short words are the best, and the old words when short are best of all.”³⁴ “Use the smallest word that does the job,” advised essayist and journalist E.B. White.³⁵ In a letter, Mark Twain praised a 12-year-old boy for “us[ing] plain, simple language, short words, and brief sentences. That is the way to write English – it is the modern way and the best way. Stick to it; don’t let fluff and flowers and verbosity creep in.”³⁶

Humorist Will Rogers wrote more than 4,000 nationally syndicated newspaper columns, including ones that spoke about language. “[H]ere’s one good thing about language, there is always a short word for it,” he said. “‘Course the Greeks have a word for it, the dictionary has a word for it, but I believe in using your own word for it. I love words but I don’t like strange ones. You don’t understand them, and they don’t understand you. Old words is like old friends – you know ’em the minute you see ’em.”³⁷

“One of the really bad things you can do to your writing,” novelist Stephen King explains, “is to dress up the vocabulary, looking for long words because you’re maybe a little bit ashamed of your short ones.”³⁸ “Any word you have to hunt for in a thesaurus,” he says, “is the wrong word. There are no exceptions to this rule.”³⁹

3) If it is possible to cut a word out, always cut it out.

What if the writer says, “In my opinion it is not an unjustifiable assumption that. …”? Orwell proposed a simpler, less mind-numbing substitute: “I think.”⁴⁰

This third rule also placed Orwell in good company.  “The most valuable of all talents is that of never using two words when one will do,” said lawyer Thomas Jefferson, who found “[n]o stile of writing … so delightful as that which is all pith, which never omits a necessary word, nor uses an unnecessary one.”⁴¹ “Many a poem is marred by a superfluous word,” said poet Henry Wadsworth Longfellow.⁴² “Less is more,” explained British Victorian poet and playwright Robert Browning, wasting no words.⁴³

Judges, in particular, can appreciate this short verse by Theodor Geisel (Dr. Seuss), who wrote for children, but often with an eye toward the adults:
“[T]he writer who breeds/ more words than he needs/ is making a chore/ for the reader who reads./ That’s why my belief is/ the briefer the brief is,/ the greater the sigh/ of the reader’s relief is.”⁴⁴

4) Never use the passive where you can use the active.

The passive voice usually generates excess verbiage and frequently leaves readers uncertain about who did what to whom. The active voice normally contributes sinew not fat, clarity not obscurity.

Consider the second line of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Historians have praised Thomas Jefferson as “a genius with language” whose draft Declaration resonated with “rolling cadences and mellifluous phrases, soaring in their poetry and powerful despite their polish.”⁴⁵ Would Jefferson have rallied the colonists and captivated future generations if instead he began with, “These truths are held by us to be self-evident….”?

5) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

One federal district court advised that legal writers gamble when they “presuppose specialized knowledge on the part of their readers.”⁴⁶ In 2008, the U.S. Court of Appeals for the Seventh Circuit explained the dangers of presupposition in Indiana Lumbermens Mutual Insurance Co. v. Reinsurance Results Inc., which held that the parties’ contract did not require the plaintiff insurer to pay commissions to the company it had retained to review the insurer’s reinsurance claims.⁴⁷

Writing for the Lumbermens Mutual panel, Judge Posner reported that the parties’ briefs “were difficult for us judges to understand because of the density of the reinsurance jargon in them.” “There is nothing wrong with a specialized vocabulary – for use by specialists,” he explained. “Federal district and circuit judges, however, … are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English.”⁴⁸

Counsel in Lumbermens Mutual, Judge Posner concluded, “could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.”⁴⁹ 

6) Break any of these rules sooner than say anything outright barbarous.

Orwell punctuated each of his first five rules with “never” or “always.” Lawyers learn to approach these commands cautiously because most legal and nonlegal rules carry exceptions based on the facts and circumstances. Conventions of good writing ordinarily deserve adherence because most of them enhance content and style most of the time. They became conventions based on the time-tested reactions elicited by accomplished writers. Orwell recognized, however, that “the worst thing one can do with words is to surrender” to them.⁵⁰ As writers strive for clear and precise expression, they should avoid becoming prisoners of language.

Orwell’s sixth rule wisely urges writers to follow a “rule of reason,” but I would rely on personal judgment and common sense even when the outcome would not otherwise qualify as “outright barbarity.” Good writing depends on sound grammar, spelling, style, and syntax, but it also depends on willingness to bend or break the “rules” when advisable to maintain the bond between writer and reader. Within bounds, readers concern themselves more with the message than with what stylebooks say about conventions.

Orwell’s fourth and fifth rules illustrate why good writing sometimes depends on departing from conventions. The fourth rule commands, “Never use the passive where you can use the active.” Look again at the second line from the Declaration of Independence, quoted above. It contains a phrase written in the passive voice (“that they are endowed by their Creator with”). The active-voice alternative (“that their Creator endowed them with”) would not have produced a result “outright barbarous,” but Jefferson would have sacrificed rhythm and cadence. The passive phrase left no doubt about who did the endowing, and two extra words did not slow the reader.

Orwell’s fifth rule commands, “Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.” But suppose, for example, that a lawyer or judge wants to write about “causation” in tort law, which would qualify as jargon because the term “causation” does not normally roll off the lips of laypeople. A readership of judges or tort lawyers will connect with the jargon easier than a readership of lay clients, who in turn will connect better than teenage readers in a middle school civics class. To an audience of lawyers who are comfortable with discussing “causation,” choosing another word might even cloud or distort legal meaning. A writer uncertain about connecting with the audience can cover bases by briefly defining the term.

This rule of reason grounded in personal judgment and common sense extends beyond Orwell’s first five rules to writing generally. For example, when splitting an infinitive or ending a sentence with a preposition would enhance meaning or produce a more fluid style, then split the infinitive or end the sentence with a preposition. Maintaining smooth dialog is more important than leafing through stylebooks that readers will not have leafed through.

Sir Winston Churchill, a pretty fair writer himself, reportedly had a tart rejoinder for people who chastised him for sometimes ending sentences with prepositions. “That,” he said, “is the sort of arrant pedantry up with which I shall not put.”⁵¹

Conclusion

Lack of clarity, Orwell’s major target, normally detracts from the professional missions of lawyers and judges. What Justice William J. Brennan Jr. called “studied ambiguity”⁵² might serve the purposes of legislative drafters who seek to avoid specificity that could fracture a majority coalition as a bill proceeds to a final vote. Studied ambiguity might also serve the purposes of a lawyer whose client seeks to feel out the other parties early in a negotiation. Without maximum clarity, however, written buck-passing may compel courts to finish the legislators’ work, or may produce an agreement saddled with misunderstandings.

Similar impulses prevail in litigation. Advocates persuade courts and other decision makers most effectively through precise, concise, simple, and clear expression that articulates why the facts and the governing law favor their clients.⁵³ Judges perform their constitutional roles most effectively with forthright opinions that minimize future guesswork.

How often today do we still hear it said that someone “writes like a lawyer”? How often do we hear it meant as a compliment? Judge Reinhardt put it well in Eminence Capital LLC.: “It is long past time we learned the lesson Orwell sought to teach us.”⁵⁴

Endnotes

¹ George Orwell, Why I Write (1946) (“From a very early age, perhaps the age of five or six, I knew that when I grew up I should be a writer.”).

² Christopher Hitchins, The Importance of Being Orwell, Vanity Fair, Aug. 2012, at 66.

³ George Orwell, Politics and the English Language, in Essays on Language and Usage (Leonard F. Dean & Kenneth G. Wilson eds., 2d ed. 1963).

⁴ Id. at 325-34.

⁵ Richard A. Posner, Judges’ Writing Styles (and Do They Matter?), 62 U. Chi. L. Rev. 1421, 1423 n.8 (1995).

⁶ Paul Krugman, Orwell, China, and Me, N.Y. Times Blogs (July 20, 2013).

⁷ The entire essay is available for downloading at http://orwell.ru/library/essays/politics/english/e_polit.

⁸ Orwell, supra note 3, at 335.

⁹ Felix Frankfurter, When Judge Cardozo Writes, The New Republic, Apr. 8, 1931.

¹⁰ Letter from Daniel Webster to R.M. Blatchford (1849), in Peter Harvey, Reminiscences and Anecdotes of Daniel Webster 118 (1877).

¹¹ Orwell, supra note 3, at 336.

¹² Id. at 325.

¹³ 680 F.3d 819 (D.C. Cir. 2012); see Douglas E. Abrams, Acronyms, 6 Precedent 44 (Fall 2012).

¹⁴ National Ass’n of Regulatory Utility Comm’rs, Final Brief of Consolidated Petitioners 48, 2011 WL 5479247 (2012).

¹⁵ National Ass’n of Regulatory Utility Comm’rs, Final Brief for Respondent 24-25, 2011 WL 5479246 (2012).

¹⁶ National Ass’n, 680 F.3d at 820 n.1; see also Illinois Public Telcomm. v. FCC, No. 13-1059 (D.C. Cir. Mar. 25, 2014) (per curiam) (order striking parties’ briefs and ordering submission, within two days, of briefs that “eliminate uncommon acronyms”).

¹⁷ 2012 WL 5199670, No. 8:08-CV-882-T-17-TGW (M.D. Fla. Oct. 22, 2012).

¹⁸ Id.

¹⁹ Orwell, supra note 3, at 333-34.

²⁰ 89 F.3d 1269 (6th Cir. 1996) (en banc).

²¹ Orwell, supra note 3, at 325.

²² Id. at 327.

²³ Id.

²⁴ Id. at 328.

²⁵ Id.

²⁶ Id. at 329.

²⁷ Id. at 334, 335.

²⁸ Id. at 331-32, 334.

²⁹ 316 F.3d 1048 (9th Cir. 2003).

³⁰ See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating the factors).

³¹ Eminence Capital, 316 F.3d at 1053-54

³² Id. at 1054.

³³ A.E. Hotchner, Papa Hemingway 69 (1966) (quoting Hemingway).

³⁴ Susan Wagner, Making Your Appeals More Appealing: Appellate Judges Talk About Appellate Practice, 59 Ala. Law. 321, 325 (1998) (quoting Churchill).

³⁵ Max Messmer, It’s Best to be Straightforward On Your Cover Letter, Resume, Pittsburgh Post-Gazette, Nov. 29, 2009, at H1 (quoting White).

³⁶ Robert Hartwell Fiske, The Dictionary of Concise Writing: 10,000 Alternatives to Wordy Phrases 11 (2002).

³⁷ Betty Rogers, Will Rogers 294 (1941; new ed. 1979) (quoting Will Rogers).

³⁸ Stephen King, On Writing: A Memoir of the Craft 110 (2000).

³⁹ Stephen King, Everything You Need to Know About Writing Successfully: in Ten Minutes (1986), www.msu.edu/~jdowell/135/King_Everything.html.

⁴⁰ Orwell, supra note 3, at 331.

⁴¹ Cindy Skrzycki, Government Experts Tackle Bad Writing, Wash. Post, June 26, 1998, at F1 (“most valuable,” quoting Jefferson); The Family Letters of Thomas Jefferson369 (E.M. Betts and J.A. Bear Jr. eds., 1966) (letter of Dec. 7, 1818) (“stile of writing”).

⁴² III The Works of Henry Wadsworth Longfellow With Bibliographical and Critical Notes and His Life, With Extracts From His Journals and Correspondence278 (1886-1891).

⁴³ Robert Browning, Andrea del Sarto, in Pictor Ignotus, Fra Lippo Lippi, Andrea Del Sarto32 (1925).

⁴⁴ Richard Nordquist, “We Can Do Better”: Dr. Seuss on Writing, http://grammar.about.com/od/advicefromthepros/a/seusswrite09.htm.

⁴⁵ Joseph J. Ellis, American Creation: Triumphs and Tragedies At the Founding of the Republic 56 (2007) (genius); Walter Isaacson, Benjamin Franklin: An American Life 311 (2003) (rolling cadences).

⁴⁶ Waddy v. Globus Med. Inc., No. 407CV075, 2008 WL 3861994, at *2 n.4 (S.D. Ga. Aug. 18, 2008).

⁴⁷ 513 F.3d 652 (7th Cir. 2008).

⁴⁸ Id. at 658.

⁴⁹ Id.

⁵⁰ Orwell, supra note 3, at 335.

⁵¹ See, e.g., Susan E. Rowe, Six to Nix: Grammar Rules to Leave Behind, 67 Or. St. B. Bull. 37 (Nov. 2006).

⁵² William J. Brennan Jr., Some Thoughts on the Supreme Court’s Workload, 66 Judicature 230, 233 (1983).

⁵³ Henry Weihofen, Legal Writing Style 8-104 (2d ed. 1980) (discussing these four fundamentals).

⁵⁴ 316 F.3d at 1054.