I recently ran across more awesomeness from Bryan Garner. (Sorry if you’re over the Garner craze. I’m a fan, even though I don’t always agree with him.) Dunning-Kruger debilitates many professions, but I’d have to agree with Garner that we lawyers are all but intellectually paralyzed by it. In pondering “Why Lawyers Can’t Write” back in March of 2013 for the ABA Journal, Garner noted:

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. But there’s plenty of blame that falls elsewhere. Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.) For law firm associates, their senior lawyers too often decry any emphasis on writing style (“I’m just concerned with the substance of it! I leave style to others!”). And in general society, serious readers are becoming an endangered species.

To demonstrate the typically garbled hogwash that passes for writing in most legal circles, Garner offers the following alternate versions of the same content and asks which one is “a superior legal and linguistic performance”:

Option A:
It is agreed that no waiver by either party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.

Option B:
If either party fails to require the other to perform any term of this agreement, that failure does not prevent the party from later enforcing that term. If either party waives the other’s breach of a term, that waiver is not treated as waiving a later breach of the term.

Personally, I choked on Option A with the opening utterance of passive voice. Then the “hereto” made me gag a bit more. So by process of elimination (and in an effort to avoid asphyxiating myself), I’ve decided that Option B must be the winner.

But that could also be a bit of Dunning-Kruger sabotaging my judgment…

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