I remember well the first time I heard the word “redundancy” in high school. For me it was something of a revelation; conservation has always appealed to me, and Mr. Schaffer, our English teacher, was showing us how to conserve words!
As a lawyer I have always sought to avoid legal clichés which often obscure and confuse the message that is intended by the writer. You know them: “whereas”, “whereof”, “notwithstanding”, “hereinbefore”, “heretofor”, “therefore” (not to be confused with “therefor”), “therefrom”, and so on. There may be times when they are unavoidable; but more often than not, they are abused.
Then there’s the stilted and often redundant language we use in drafting agreements. It is fundamental to say at the outset, usually in a separate paragraph, something to the effect of “The parties hereby agree as follows:”. More times than not, almost immediately afterward something like this will appear: “Seller agrees to sell his property to Buyer . . .”. So now we have “agree, agree”. Do we repeat the language through the document because one “agree” is not enough? Somehow repeating it 20 or 30 times makes it indelible? But the habit is all but universal.
Every lawsuit starts with pleadings; then the litigants file a variety of motions for various purposes, and oral arguments on the motions before a judge or judges follow. To support their arguments the lawyers submit “briefs” which are intended to summarize the legal arguments. The problem with all of these legal documents is that they have grown to the point where litigation lawyers must use often several boxes and carts to lug the documents from office to court room and back. “Brief” hardly describes the often cumbersome documents lawyers lay upon the courts. In a pending case, United Parcel Service, Inc. v. Hagan, a New York federal judge finally had enough. In the case two former UPS franchisees accuse the worldwide delivery service of telling employees to lie about the size and weight of packages in order to jack up prices on unsuspecting customers.
Judge William Pauley said the following of all the pages generated by the lawyers in the case: “A troubling trend toward prolixity in pleading is infecting court documents in this district and elsewhere. Voluminous pleading is self-defeating. It chokes the docket and obscures otherwise meritorious claims and defenses”. In response to a UPS complaint containing 175-paragraphs (probably intended to overwhelm the defendants, said the judge) along with 1400 exhibits, the defendants countered with a 210-page answer, asserting 12 counterclaims, and again innumerable exhibits. Undaunted, UPS responded to Hagens’ answer with a “breathtaking” 303-page pleading which the judge says “. . . brims with irrelevant and redundant allegations”. The judge then ordered UPS to file an amended complaint “stripped of surplusage”. If there were such a thing as legal-sainthood, he has earned canonization!
A former partner of mine, Clarke Hess (now deceased), was a master of words. His thoughts leapt off the page, succinctly and clearly. He once responded to a 42-page brief with an 8-page brief which concerned us all. Could he possibly have countered 42 pages adequately in just 8 pages we mused, until we read this masterful work of art. He did, and he won! Another candidate for legal-canonization.
– Ken Butera