Writing Wrongs: Language Choice in Legal Writing

With a List of Suggested Resources

Published in

walawlibrary

11 min readMay 29, 2024

**On June 4, 2020 the Washington Supreme Court issued an open letter to the judiciary and legal community recognizing deep-seated and continuing institutional racial injustice and calling for action to address systemic inequities. The Washington State Law Library is dedicated to furthering the Court’s goal by publishing stories that highlight the historical context surrounding systemic racism and efforts to dismantle it.**

On the left side of the photo, small wooden letter tiles are scattered on a wood grained surface. At center right, tiles form the words “WORDS HAVE POWER,” one word per row. A person’s hand is shown at bottom right placing the last tile in the word “POWER.” — Photo by 6428W Digital Art

Participation in the legal system involves a lot of writing. Judges write opinions, legislators write statutes, courts draft rules, litigants write motions, businesses draft contracts, and individuals write wills. Are these words used to create a wall blocking access to justice? Sometimes they are, whether through intention, implicit-bias, or simply through a lack of mindfulness. Language in legal documents can actively cause harm, such as covenants in deeds restricted by race or caselaw precedent involving persons in slavery. Other aspects of language can marginalize and disengage historically underrecognized and disinvested people. This post is part of our continuing effort to highlight actions that address systemic inequities and to encourage everyone with influence in the legal field to write mindfully to avoid additional wrongs.

Using language to build public confidence

Recent polls show a steady decline of public trust across all three branches of government. Traditionally, the judicial branch retained trust above the executive and legislative branch, but that is no longer true. In a 2023 Gallup poll, 49 percent of respondents reported having trust in the judicial branch of the federal government, where the average for years prior to 2022 was 68 percent.

According to Jesse Rutledge, Vice President for Public Affairs at the National Center for State Courts, “Many Americans express concern that there are two systems of justice — one for those with money, power, and political influence — and one for everyone else.” Other studies find low levels of trust and confidence among Black Americans along with concerns over widespread systemic bias in the courts. They confirm how “socioeconomic status impacts judicial outcomes and how low- to middle-income people are priced out of the fairness touted by our system.”

White text is shown over a black and white photo of a gavel resting on a round sound block. The text reads, “[T]he law lives through language, and we must be careful about the language we use. U.S. Supreme Court Justice Anthony Kennedy.” Additional smaller text at bottom provides the author, article name, and citation from which the quote was pulled.

One step toward improving public trust and confidence is to provide for more inclusive access to the courts and legal information through selective use of unbiased language. As Chicago Bar Foundation Executive Director Bob Glaves put it in his blog post on The Intersection of Access to Justice and Racial Justice:

[W]herever we are in the legal profession, we are trustees of the system and are responsible for the quality of justice. When whole classes of people are systemically treated worse than others, the ideal of equal justice for all is illusory, and our leadership responsibility on owning and fixing the problem is clear.

Legal writing authorities

There are at least a dozen legal writing style guides in our library, mostly written by white men and mainly quoting other white men as expert writers. Borrowing from an exercise in the law review article Elephant in the Room, by Patrick Barry, if you make a list of the books that have guided your legal writing, can you identify one author of color, one who identifies as female, or one from any historically marginalized community? Barry reports one student’s response to the exercise:

As a student of color, I feel like there’s always a towering elephant in the law school classroom: the overwhelming majority of textbook authors and professors are white. But no one talks about it, and they certainly don’t talk about how this [homogeneity] controls the narrative.

According to Barry the number of law students of color is rising steadily. Author Alexa Chew, in the article The Fraternity of Legal Style, points out that at least a third of law professors and judges, and more than half of law students, are women. Chew also quotes other authors, noting that “an inner circle of about a dozen white, male writers” dominate civil rights legal scholarship and “men monopolize legal authorship in contracts.”

The authority of the white male author lies upon centuries of legal history establishing a hierarchical distribution of resources and power that began with slavery and continued with Black Codes and Jim Crow. The resulting legal system is based on the supremacy of some over others. In the webinar The Importance of Language — How to Use Inclusive Communications to Advance Equity in the Administration of Justice, Lisa Burke of the New Jersey Administrative Office of the Courts, discusses how “white supremacy situates as the norm or as the reference point some generalized white experience.” Although many advances have been made in the past half century, these biased reference points show up in the language and writing that are foundational to the law.

Systemic changes to language in the law

Professionals across disciplines are taking a hard look at the language used in their fields. For example, librarians are analyzing terms used to catalog materials, using person-first language like noncitizen rather than illegal alien or revising subject headings relating to Indigenous groups. Libraries also support authors representing historically excluded communities. Likewise, at every level of the legal field, from litigant to law student to attorney to law professor to judge, a mindful approach to language choice advances equity and belonging.

Brown text is shown over a blurred photo of a person’s hand with a pen in it and a gavel and sound block in front of them. The text reads, “The undersigned hereby returns to the party of the first part the attached and enclosed stipulation to dismiss in the above-entitled matter, the same being duly and timely executed by myself.” A red cross-out is drawn over the brown text, and underneath this more red text reads, “Here’s the signed stipulation.” A citation appears at bottom right.

As we noted in our 2022 blog post on Gender in the Courtroom and Workplace, The Non-Biased and Inclusive Language Project suggested many amendments to Washington State Court Rules. The amendments were adopted effective January 1, 2023. Additional changes have been made to the General Rules regarding personal pronouns, and to the Code for Judicial Conduct and the Rules of Professional Conduct to address harassment and misconduct related to gender expression and gender identity.

The guide to citing sources in court filings and legal scholarship used by most attorneys, law review authors, and many courts, The Bluebook: A Uniform System of Citation, has adopted a rule under “Explanatory Phrases and Weight of Authority” that reflects a changing awareness of the harm that can be caused by language. For scholarly publications, Rule 10.7.1(d) adds a descriptive parenthetical note for citing cases where an enslaved person was involved, and provides examples like “Wall v. Wall, 30 Miss. 91 (1855) (enslaved person at issue).”

Writing for equity

This post includes a long list of resources including many law review articles that discuss different elements of legal writing. One great place to start understanding the importance of language choice is the webinar The Importance of Language — How to Use Inclusive Communications to Advance Equity in the Administration of Justice from the National Center for State Courts. You may also want to read about The Underground Scholars Initiative Language Guide in the Washington State Bar News.

When writing, consider reading level, clarity, and visual accessibility, along with avoiding language containing microaggressions. Watch for and disrupt bias, recognizing the role that “culture, context, and cognition play in law, legal systems, and the lawyering process” and remembering the “historical impact law has had on marginalized and vulnerable populations as well as lawyers’ roles and responsibilities in movements for social change.”

In discussing bias in language and legal analysis, Seattle University School of Law legal writing professors Lorraine Bannai & Anne Enquist wrote in their law review article (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language:

Whether the issue is one of gender, race, national origin, sexual orientation, or disability, the overriding principles governing word choice are the same:
(1) realize that what a person is called affects how that person is seen, and respect the individual’s right to self-chosen labels;
(2) write precisely and avoid offense;
(3) whenever possible, prefer the specific term over the general term;
(4) prefer terms that describe what people are rather than what they are not;
(5) note that a word’s connotations may change as the part of speech changes;
(6) emphasize the person over the difference; and
(7) avoid terms that are patronizing or overly euphemistic or that paint people as victims.
Language choices based on these principles are the hallmark of the culturally competent lawyer.

Legal writing guides at the Washington State Law Library

Dahl’s Law Dictionary: Spanish-English/English-Spanish: An Annotated Legal Dictionary (1999) by Henry Saint Dahl

Elegant Legal Writing (2024) by Ryan McCarl

Grammar, Punctuation, & Style: A Quick Guide for Lawyers and Other Writers (2013) by Deborah Cupples, Margaret Temple-Smith (available only in eBook format)

Judicial Writing Manual: A Pocket Guide for Judges (2013) by the Federal Judicial Center (also available online)

Just Words: Law, Language, and Power (2019) by John M. Conley, William M. O’Barr, and Robin Conley Riner

Two book covers are shown over a light gray background that has the appearance of see-through tufted fabric. The book cover on the left is gray with white text that reads, “Ross Guberman. Point Made. How to Write Like the Nation’s Top Advocates. Second Edition.” The book cover on the right is orangey red with white text that reads, ”Ross Guberman. Point Taken. How to Write Like the World’s Best Judges.” — While our collection suffers from a lack of diverse voices on legal writing, **Point Made** and **Point Taken** highlight the legal writing of a wide spectrum of advocates and judges and are two of our most popular writing guides

Legal Drafting in a Nutshell (2021) by George W. Kuney, Donna C. Looper

Legal Usage: A Modern Style Guide (2018) by Peter Butt

Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word (2020) by Hon. Robert E. Bacharach, Tenth Circuit Court of Appeals

Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers (2014) by E. Scott Fruehwald

Legal Writing in Plain English: A Text with Exercises (2013) by Bryan A. Garner

Making the Case: The Art of the Judicial Opinion (2016) by Paul W. Kahn

Modern Dictionary for the Legal Profession (2021) by Gerry W. Beyer

Noronha’s Legal Dictionary: English-Portuguese, Portuguese-English (1994) by Durval de Noronha Goyos Jr.

Plain English for Lawyers (2019) by Richard C. Wydick, Amy E. Sloan

Point Made: How to Write Like the Nation’s Top Advocates (2014) by Ross Guberman

Point Taken: How to Write Like the World’s Best Judges (2015) by Ross Guberman

Seeing Through Legalese: More Essays on Plain Language (2017) by Joseph Kimble

The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing (2023) by Diana J. Simon

The Redbook: A Manual on Legal Style (2018) by Bryan A. Garner with Jeff Newman, Tiger Jackson (also available in eBook format)

Writing Deskbook for Administrative Judges: An Introduction (2010) by Michael H. Frost, Paul A. Bateman

Law review articles

Alexander Walker III, Black English for Lawyers — A Primer, 113 Calif. L. Rev. (forthcoming 2025)

Richard K. Neumann, Jr., The Modern Way to Write a Statute Is to Tell a Story, 28 J. Leg. Wtg. Inst. 217 (2024)

Amanda K. Stephen, The Underground Scholars Initiative Language Guide: A Tool for Reducing Bias in Your Writing, Wash. St. B. News, Feb. 2023, at 22

Ellie Margolis, Marginalization Matters: Discipline-Building in the Legal Writing Community, 6 Stetson L. Rev. 1 (2023)

Sarah McConnell, Educating Judges & Advancing Inclusion: The Evolution of Gendered Language in U.S. Courts, 29 Roger Williams U. L. Rev. 86 (2023)

Jennifer Safstrom & Joseph Mead, Developing Inclusive Language Competency in Clinical

Teaching (note — includes an appendix titled Inclusive Language in Litigation: An Introductory Guide), 29 Clinical L. Rev. 349 (2023)

Joseph A. Rosenberg, Why Lawyers Should Write for the Digital Reader, 27 J. Leg. Wtg. Inst. 111 (2023)

Alexa Z. Chew, The Fraternity of Legal Style, 20 Legal Communication & Rhetoric: JALWD 39 (2023)

Keerthana Nunna, W. Nicholson Price II & Jonathan Tietz, Hierarchy, Race, and Gender in Legal Scholarly Networks, 75 Stan. L. Rev. 71 (2023).

Benjamin Eidelson, The Etiquette of Equality, 51 Phil. & Pub. Aff. 97 (2023)

Eric Martínez, Francis Mollica, and Edward Gibson, Even Lawyers Don’t Like Legalese, 120 Proc. Nat’l Acad. Scis. no. 23, art. e2302672120 (2023)

David J.S. Ziff, Citation, Slavery, and the Law as Choice: Thoughts on Bluebook Rule 10.7.1(D), 101 N.C. L. Rev. F. 72 (2023)

An illustration shows a person sitting crisscross applesauce with a laptop in their lap over a khaki colored background. The person is wearing black pants, black shoes, and a teal shirt and wears a black upswept hairstyle. The person’s face is featureless.

L. Danielle Tully, Race and Lawyering in the Legal Writing Classroom, 26 J. Leg. Wtg. Inst. 195 (2022)

Phyllis C. Taite & Nicola Boothe, Teaching Cultural Competence in Law School Curricula: An Essential Step to Facilitate Diversity, Equity, & Inclusion in the Legal Profession, 2022 Utah L. Rev. 813 (2022)

John G. Browning, Should Legal Writing Be Woke?, 20 Scribes J. Leg. Writing 25 (2022)

Donald L. Revell & Jessica Vapnek, Gender-Silent Legislative Drafting in a Non-Binary World, 48 Cap. U. L. Rev. 103 (2020)

Steven K. Homer, Hierarchies of Elitism and Gender: The Bluebook and the ALWD Guide, 41 Pace L. Rev. 1 (2020)

Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79 (2020)

Teri A. McMurtry-Chubb, Still Writing at the Master’s Table: Decolonizing Rhetoric in Legal Writing for a “Woke” Legal Academy, 21 The Scholar 255 (2019)

Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)

Elizabeth B. Cooper, The Appearance of Professionalism, 71 Fla. L. Rev. 1 (2019)

Erika K. Wilson, The Legal Foundations of White Supremacy, 11 DePaul J. for Soc. Just., no. 2, art. 6 (2018)

Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C. J. L. & Soc. Just. 233 (2014)

SpearIt, Enslaved by Words: Legalities & Imitations of Post-Racial Language, 2011 Mich. St. L. Rev. 705 (2011)

Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 Fordham L. Rev. 1545 (2011)

Lorraine Bannai & Anne Enquist, (Un)Examined Assumptions and (Un)Intended Messages: Teaching Students to Recognize Bias in Legal Analysis and Language, 27 Seattle U. L. Rev. 1 (2003)

Websites

The Language Project — The Marshall Project

Underground Scholars Language Guide: A Guide for Communicating About People Involved in the Carceral System — Berkeley Underground Scholars, March 6, 2019

United States Immigrant and Refugee Terminology and Jargon Guide — The Sillerman Center (Brandeis University)

The Impact of Words and Tips for Using Appropriate Terminology: Am I Using the Right Word? — Museum of the American Indian

Disability Language Style Guide — National Center on Disability and Journalism

Racial Equity Tools Glossary

GLAAD Media Reference Guide — 11th Edition

Inclusive Language Guide — American Psychological Association

Inclusive Language is Allyship — 2Civility

Conscious Style Guide — Karen Yin

WSU Editorial Style Guide — Inclusive language — Washington State University

Bias-Free Language — APA Style

What Is Plain Language? — Plain Language Action and Information Network

Implicit Bias Initiative — American Bar Association

Plain Language (monthly column) — Michigan Bar Journal

Goblin Tools Formalizer

Citing Slavery Project

Diversity, Equity, and Inclusion Resources for Local Governments — Municipal Research and Services Center of Washington

Diversity, Equity and Inclusion: Key Terms and Definitions — National Association of Counties

Deskbook on Language Access in Washington Courts

Ensuring Equal Access for People With Disabilities: A Guide for Washington Courts

Ensuring Equal Access for People with Disabilities: A Guide for Washington Administrative Proceedings

Gender-Inclusive Language in the Courts: How to Communicate with Fairness, Dignity, Impartiality, and Accuracy — The National Center for State Courts (Second edition 2024)