The pitching competition also helped me realise that I could change my writing style by treating it as a craft to be learned. Since the competition I’ve been studying the craft of writing. I’ve been to plain English and creative writing courses; and seen the light with short sentences, familiar words, present tense and active voice. Books on grammar and writing have been helpful, but none of them more so than Stephen King’s ‘On Writing’:

I think timid writers like (passive verbs) for the same reason timid lovers like passive partners. The passive voice is safe. There is no troublesome action to contend with; the subject just has to close its eyes and think of England, to paraphrase Queen Victoria. I think unsure writers also feel the passive voice somehow lends their work authority, perhaps even a quality of majesty. If you find instruction manuals and lawyers’ torts majestic, I guess it does.’²²

‘Ingrained’ writing pratices

But it still surprises me how, without thinking about it, I still write with the passive voice, nominalisation and too many unnecessary words. Young and not so young Sparke Helmore lawyers, even with the benefit of plain English study, do the same. It’s understandable because most of the case law, legislation and texts they read are written in traditional legal language, which encapsulates all of these unsavoury features.

Once familiar with legal language, they tend to use it without being aware of it.²³

Even recent editions of legal texts such as Turner’s Australian Commercial Law tediously use ‘he or she’ when the singular ‘they’ would be neater.²⁴ Lawyers find it hard to break traditional grammatical rules but it helps to point out that the singular ‘they’ has the backing of legal authority. For example, the Australian Corporations Law Simplification Program adopted the singular ‘they’ for its rewrite of the Corporations Law.²⁵ And there’s no stronger inducement to get lawyers to change their writing than to prove there’s a noteworthy precedent for it.

Similarly, ‘pursuant to’ is so ingrained in their vocabularies that there is an outcry against any suggestion of replacing it with ‘under’. I confidently indicate that Asprey describes ‘pursuant to’ as one of the hallmarks of legalese and that ‘under’ is an acceptable substitution for ‘pursuant to’. And if they’re not happy with that then they’re flying in the face of the policy of the First Parliamentary Counsel of Australia which uses ‘under’ rather than ‘pursuant to’. (Collector of Customs v Brian Lawlor (1979) 24 ALR 307).²⁶

And then there are the modern bureaucratic buzz words. I bite my tongue every time someone says ‘proactive’ and smile questionably. ‘Proactive’ is reaching the status of some of the archaic and Latin words - the ones lawyers often use meaninglessly and without having to think too much. By now most people at Sparke Helmore know I don’t like ‘proactive’. ‘Well, what would you use?’ they ask. And usually I hesitate because I’m not sure so I reply ‘Say what you really mean.’ And often it’s something like ‘Get off your arse and do it’. And, reminded of Stephen King’s way with words, I tell them it’s acceptable provided they substitute ‘backside’ for ‘arse’: