Clarity in Legal Writing: Going Global

Citation:
Hendrik Wieduwilt, Die Sprache des Gutachtens, JuS 2010, 288.

Link: https://drive.google.com/file/d/1UCn3Q8qNhqSESNyYvtNPKo3iZHhGKDUy/view

So today I have decided to discuss a German-language source for the first time since starting this blog.

Earlier today, I happened to see a Twitter discussion about legal language generally and a comparison between the readability of English and German legal writing in particular. This topic has been on my mind this week. I have been working on a project for a professor that has required me to read German legal opinions, and I was able to do so and make reasonably good sense of them, but it took a lot of mental effort and I was very tired after. I was very surprised that my legal German skills are still good enough to do this, given that I finished my LLM nearly 18 months ago.

What is even more interesting is that, in a full year of legal studies in Germany, aside from the research I did for my LLM thesis, I was not required to read a single judicial opinion from a German court, so I am not highly practiced in this skill.

When I was working on my JD, I figure I read anywhere from 15 to 20 opinions a week, depending on my class load. How judges express themselves and talk about the law here in the US has, essentially, been burned into my brain. Like most US lawyers, I can read a case and get the gist of it in about 3-5 minutes, sometimes more, sometimes less. Even though it seems like every opinion coming from a US court follows a different structure or framework, the words used to signal a rule, or a point of analysis, or the legal conclusion, are pretty much the same across the board.

German judicial opinions, on the other hand, have a fairly consistent and regimented structure. I generally know where I should look in them for information. The writing itself, however, is where I get tripped up. Of course, German is not my native language, so naturally it takes me longer to decipher a complicated sentence filled with “3€” words (to borrow an American expression). However, the writing, at least to me, seems more dense than that in US cases, and it reflects the complicated logic employed in the German legal system. I don’t have much beyond a vague sense of this. But now I am curious, and I would like to design for myself some kind of comparative survey of judicial language in a particular context. All in my spare time, naturally. 🙂

The actual Twitter conversation about German vs. English legal language and opinion language involved multiple threads, tweets, and subtweets, with people joining in and commenting on the original and other tweets, as Twitter conversations often do (someone should write an article about that too).

Anyway, it is too confusing to explain in full. So I will merely say that the conversation was originally started by Hendrik Wieduwilt (https://twitter.com/hwieduwilt/status/1197415288117051392) and that the tweet about it that I saw was posted by my friend Alexandra Kemmerer (https://twitter.com/kemmereralex/status/1197469040165490688). According to the conversation, the reasons that people think that US legal writing is more readable than German legal writing have to do with differences in legal education and the use of the Socratic Method in the US, the nature of the intended audiences of legal works in each country (academics vs. non-academics), and pragmatism inherent in making legal arguments in the US legal system that are not present in the German system. I have to say that, in general, I agree with these points.

Wieduwilt also posted a list of works that discuss legal writing in more depth (https://twitter.com/hwieduwilt/status/1196893133092638721), of which one was an article he wrote about the German Gutachtenstil. This was a word that struck terror in my heart while I was an LLM student. “Gutachten” is one of those German words that has several English equivalents, including “assessment” or “opinion” or “review.” I think, in this context, “opinion” is too subjective, and would tend to use “assessment.” “Stil,” of course, is something like “style” in English.

For those familiar with with the IRAC (Issue > Rule > Analysis > Conclusion) framework for US law school exams, the Gutachtenstil is like that, but stricter and with mandatory words and phrases. German law students are required to use it in every exam and essay they write. Because I knew my German would never be good enough to do it right in the time allotted, and that the stress of that situation would probably kill me, I took advantage of the rule that non-native German speakers who are LLM students have the option to do oral exams instead.

Anyway, this article about the Gutachtenstil was really interesting. Wieduwilt wrote it with German law students in mind. He started out by explaining how students are afraid of it because (a) they think it should be something it isn’t, and (b) the have bad examples to go on in learning it. He pointed out all the things that German law students read that are NOT written in this style because they have a subjective nature to them, including legal commentaries, text books, and journal articles. Judicial opinions are also not written in this style because, as he explains, they should be viewed as a sovereign act (Hoheitsakt) that use a language of authority and power (Herrschaftssprache).

Wieduwilt provided some examples of the types of writing that should never be used in the Gutachtenstil. This included a lengthy discussion of the Konjunktiv II (English: subjunctive), which is essentially the following grammatical construction: “That (rule, presumably) the court would never want to follow.” (“Dem würde der Senat nicht folgen wollen.”) Wieduwilt explains that this formulation is generally used to signal politeness, but that in the Gutachtenstil it merely makes the writer look unsure.

Furthermore, the author stresses that elements of humor, irony, exaggeration, etc. have no place in the Gutachtenstil, nor do filler words, interjections, or what students might think is legal jargon. Instead, the author recommends using relatively simple sentences that express concrete ideas in a way that someone in a hurry can read and understand easily.

After reading that, I felt very smart that I never tried to write an exam in German law school.

The rest of the article provides a brief description of the four required elements of the Gutachtenstil. As close as I can approximate, here are the basic descriptions of each in English:

  • Introduction (Einsteig): This is the hypothesis that expects a test (“eine Hypothese, die auf eine Überprüfung erwartet”).
  • Major Premise (Obersatz): This presents the abstract requirements that must be tested (“stellt die abstrakten Voraussetzingen dar, die geprüft werden”).
  • Support (Untersatz): This is where the facts are analyzed under the law (“der Sachverhalt wird unter die Norm gezogen”). In German law, they often use the word “Subsumtion” to describe this concept.
  • Result (Ergebnis): One sentence that reflects the introduction (“den Einsteigssatz wiederspiegelt”).

The article concludes with several recommendations for students, which include encouraging them to read and internalize examples of the Gutachtenstil that follow the rules for language use and framework he outlined. In the end, I think that is a very sensible recommendation, not just for legal writing but any kind of writing. Ideally, writing should consist of a predictable framework that includes the necessary elements and language that is easy to read and expresses your point clearly. While German judicial opinions have the former element, I often find the latter lacking. Clearly I am not alone in this.

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