February 2012 Bar Bulletin
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February 2012 Bar Bulletin

Discovering Brevity (in Discovery)

By Denis Stearns

 

Therefore, since brevity is the soul of wit, And tediousness the limbs and outward flourishes, I will be brief: your noble son is mad...
—Shakespeare's Hamlet, Act 2, Scene 2

Although brevity may be "the soul of wit," it is the lack of brevity that drives me mad. I am not sure what it is about the practice of law that seems to inhibit brevity (also known as conciseness). But, in my experience, the lack of conciseness — wordiness and repetition — is what most often impairs legal writing, frustrating the reader and creating confusion.

Take the following interrogatory for example:

Identify all doctors, physicians, osteopaths, physician assistants, nurse practitioners and/or other medical or health care providers, hospitals or clinics or other places where you received care and/or treatment for the past 10 years, including but not limited to what is alleged or averred in the Complaint, and any or all related or similar gastrointestinal illness or injury or injuries, bacterial or viral infection of any kind, and any immune system disorder and indicate when you received medical treatment as a result of the incident described in your Complaint or otherwise; and for each and every occasion identify each physician or other person or individual who treated you, the name and address of each facility where you received treatment, the dates upon which the treatment was received, and whether or not you are receiving continued treatment for your alleged injuries.

This discovery request is many things (none especially good), but brief it is not. Among other things, the request uses many more words than is needed, bringing to mind a hoarder who cannot bear to discard anything. Of course, the request is wordy because the writer has attempted to be thorough, certain that a wily plaintiffs' attorney will not produce an osteopath's medical records unless expressly requested. But if in being thorough and specific, you are also overbroad and incomprehensible, not getting the osteopath's records is the least of your worries.

To me, a discovery request is too long if I cannot read it out loud in a single breath. If halfway through reading, I am gasping for air, I know that the request should have been rewritten. Just as I can only go so long before taking a breath, I can only go so long before losing the thread of meaning in the sentence.


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