Legalwriting.net

When verbs become nouns

2008-05-09T12:33:00.000-07:00

Lots of legal writing contains nouns that could have been verbs. These nouns wanted to be verbs--they really did. But lawyerly habits and the default patterns of legal writing made these verbs into nouns, and only you can put them back.

Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs. I've even heard them called smothered verbs. What you call them is not important. What is important is that you learn to recognize when you've got nouns that could be verbs and train yourself to return them to their preferred state.

For example, this sentence contains two nouns that wanted to be verbs:

My expectation was that counsel would make an objection.

If we return these nouns to their verb forms, the sentence improves:

I expected counsel to object.

This example shows three benefits of using verbs in place of nouns.

By using verbs instead of nouns, you save words: the example went from nine words to five. You save words because using the noun form requires you to add other words to help the noun. When you use the verb form, you can cut the helpers, and that's fine because the helpers usually add little meaning,

By using verbs instead of nouns, you invigorate the text: the verbs in the rewrite are expect and object, which are forceful and strong, where before they had been was and would make, which are bland.

By using verbs instead of nouns, you focus on actions instead of on things or on status; this moves the writing along.

Of course, not all nominalizations are bad. Sometimes they're necessary. But all legal writing would be shorter, more vigorous, and more active if we would let many of our nouns be verbs. And you don't have to take my word for it:

“Watch for and replace nouns created from stronger verbs.” Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007).

“Use base verbs, not nominalizations.” Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006).

“Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.” Tom Goldstein & Jethro K. Lieberman, The Lawyer's Guide to Writing Well 129 (2d ed. 2002).

Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead:

be dependent upon
be in violation of
bring suit against
come to a resolution
conduct an analysis
conduct an examination
enter into a settlement
give notice
make a payment
make a recommendation
make an argument
make an assumption
make an inquiry
make an objection
perform a review
place emphasis on
provide an explanation
take into consideration

Now spot the two nominalizations in this sentence:

The defendant made a referral to Emily Graves, a financial planner, so Ms. Graves could provide the plaintiff with advice.

The two nominalizations, along with their helpers, are made a referral and provide . . . advice. By using verbs, we lose the helpers, enliven the text, and focus on actions:

The defendant referred the plaintiff to Emily Graves, a financial planner, so Ms. Graves could advise the plaintiff.

So when you write, spot the nouns that could be verbs and, when you can, return them to their livelier form.

Roy Mersky has died

2008-05-07T10:38:00.000-07:00

Roy Mersky, or "RMM" to many of us, died yesterday. He was the director of the law library here at the University of Texas School of Law. He was a giant in the field of law libraries. He was also my friend.

When I wrote an article or a book, Roy would send me a note of congratulations. He would also often congratulate me in person. He encouraged me in my writing and teaching. He created opportunities for me. He promoted my work to others.

Why did he do all these things for me? It wasn't because I was doing anything for him--I wasn't. And it wasn't because I had the power or potential to do things for him in the future--I didn't. Maybe he liked me. I don't know.

What I know is that all he did for me meant a lot to me.

What clients will pay for

2008-05-02T10:40:00.000-07:00

Oops. I meant the title of this post to say: "For what clients will pay."

Yesterday a commenter reminded me that most lawyers are too busy to polish their work as much as they should. I agreed. Today, a commenter pointed out another reason lawyers don't polish their writing as they should:

Clients aren't willing to pay to have perfect work product. More often than not, clients are pragmatic: they want "good enough" to get what they want.

This is also true. Let's take contracts for example. Only a tiny percentage of contracts end up in litigation. Almost all of them get the job done even though they aren't well polished. If that's true, the rational client should want the mediocre contract that gets the job done and not the polished contract that also gets the job done but that costs twice as much.

But a commenter who has been a client responds that, apparently, not all clients feel that way:

I have been a client. No litigation, no contracts, so perhaps my comments don't count. But in letters between my attorney and their attorney, I wanted careful editing (in fact, I edited them myself), no unnecessary words, polish, and highly intelligent writing.

So we must acknowledge that some clients want perfect written work. But it is telling, I think, that this client had to do some of the polishing herself. Would she have been just as insistent on a well polished letter if it had cost $250 instead of $150?

The busy-ness of law practice

2008-05-01T11:37:00.000-07:00

A commenter writes:

The problem is that, ironically, legal practice discourages good writing. . . . [One] reason is that most lawyers take on more work than they can do well. It may be their own fault, but they don’t have enough time to edit and proofread their writing.

This is true, and the commenter is not the first to acknowledge it:

The modern practice of law does not tolerate the type of revisory process necessary to produce a polished product--the "well-managed" law firm has more work to do that it can complete in a given span of time.

Bryan A. Garner, A Dictionary of Modern Legal Usage 518 (2d ed., Oxford U. Press 1995).

I've quoted this on my blog before, but it is true.

Reasons legal writing doesn't improve

2008-04-18T08:30:00.000-07:00

A commenter writes:

Writing is a fundamental skill. Law schools should put much greater emphasis on this fundamental. Those students who didn't develop good writing skills before they got to law school should take more than one or two legal writing courses. At the least, they should demonstrate a mastery of grammar before they're awarded a law degree.

No one can really argue with any of these points. And some law schools are doing more and better writing training. But writing education in law schools will not rise to the level this commenter would like. I offer two reasons.

First, mastering professional writing takes too long and is too big a job for law schools. No matter how proficient a law-school graduate is at the moment of graduation, there will always be something someone considers "fundamental" that the graduate will not have mastered. Ultimately, the graduate-turned-lawyer must take responsibility for mastering professional writing. The law school can and will do only so much.

Second, law schools--especially top ones--turn out thousands of lawyers every year, and these lawyers get high-paying jobs doing sophisticated work for large clients who pay high fees. That these lawyers often lack fundamental writing skills doesn't seem to matter. That their writing, even if fundamentally sound, is not crisp, vigorous, and plain doesn't seem to matter. That they often rely on forms and precedents that perpetuate archaisms, formalisms, and wordiness doesn't seem to matter.

Sure, I think it's disappointing and sometimes disgraceful that shoddy or even mediocre legal writing is everywhere. But the shoddiness and mediocrity don't seem to be causing big problems. The work gets done, the deal closes, the case goes to trial, and the brief gets filed and wins the case. Either there's not much real cost from bad legal writing, or it's very hard to measure.

On a related note, this is why it's hard for me to sell my services as a plain-English reviser. Why would a bank hire me to revise its home-loan documents into plain English? Are consumers complaining about the writing? Not much. Are the regulators criticizing the bank's forms? Not much. Is the bad writing causing litigation or other problems? Not much. The current documents work, so why pay to have them fixed?

Frankly, the law rolls on quite lucratively for many lawyers, so there's little incentive to improve legal writing. But we still try.

Expectations of what I teach

2008-04-17T06:16:00.000-07:00

Recently, a tenured professor walked into my office, holding a student-written paper. The professor was teaching an advanced course in which students had to write a scholarly paper. "I'm very upset that our students can't write," he said. "Look at this. It's terrible."

The professor then pointed out some of the writing problems in the paper. Some were analytical and structural, but some were problems of grammar, punctuation, usage, and style.

My first unspoken reaction was that it is not my job to teach students the analytical and structural approach to writing scholarly papers. If the professor wants the scholarly papers to be written in a certain way, he should teach that way to his students. He cannot assume students already know how. All I teach is memos and briefs, which are not the same as scholarly papers.

My second unspoken reaction was that it is not my job to teach students grammar, punctuation, usage, and style. If the professor wants the scholarly papers to be well written from those perspectives, he should recommend a style manual, refer the student to the writing center, or work with the student individually to fix those problems. All I teach is memos and briefs.

Were my unspoken reactions wrong?

The subtext here is that many of the tenured faculty seem to believe that students should emerge from the first-year legal-writing course with a solid foundation in grammar, punctuation, usage, and style and a mastery of all forms of written legal analysis.

U.S. House passes plain-language law

2008-04-16T08:36:00.001-07:00

The House has passed the Plain Language in Government Communications Act of 2008.

It requires agencies to rely on the Federal Plain Language Guidelines or the SEC's Plain English Handbook.

Yay.

Hat tip to Mister Thorne of Set in Style.

Writing to Win: Plain Language Jury Instructions

2008-04-10T14:52:00.000-07:00

I attended and spoke at Writing to Win: Plain Language Jury Instructions, sponsored by Washburn University School of Law. It was a great conference, very professionally run. Prof. Lyn Goering there was in charge, and she was superb.

More and more states are thinking about plainifying their jury instructions and, of course, change has to come from, or with the approval of, the judiciary. There were a lot of judges there, and that's great. The process here in Texas is still moving along, too.

Legal words you'd like to banish?

2008-03-28T08:06:00.000-07:00

What legal words or phrases would you like to banish? They can be archaic, offensive, baffling, weasel-like, or hyperlegal.

I have a few, but I'll post mine later in a longer piece.

Defending the single-sentence question presented

2008-03-25T12:19:00.000-07:00

A reader defends the single-sentence question presented:

Focus is my #1 reason: Limiting the Question Presented to one sentence forces the writer to focus on the overall issue that is addressed in the memorandum and the key facts that determine its outcome.

I say that one can maintain the same focus even if the issue statement is three sentences long. To me, it's a matter of mental discipline, not the number of sentences.

Brevity is my #2 reason; 75 words is still way too long, be they contained in one sentence or more than one. About 30 to 40 words ought to suffice.

It's hard to argue with this. I'm a big fan of brevity, and 30-40 words will take the reader half as long to get through as 75 words. Point well taken.

I will only respond this way: For plenty of legal writers, executing of the 30-word, single-sentence question presented is a problem. Since it's not usually possible to cram much detail or specifics into 30 or 40 words, these short, single-sentence questions tend to be superficial and abstract, like this:

Does substantial evidence of record supports the ALJ's decision to deny disability benefits to the claimant?

And this:

Will a trial court deny Smith's Motion to Transfer Venue on the ground that Travis County is a proper venue?

Or they tend to be awkwardly constructed because the writer is trying to get a lot of information into one sentence, like this:

Is the evidence legally and factually sufficient to support the judgment that the wrapping and packaging exclusion to the resale exemption to the Texas sales tax applies to HWC's purchase of nonreturnable reels required in wire product assemblies that HWC sold to its customers?

These examples show what I all too often see when legal writers strive to keep the question presented to a single sentence. Maybe it's just poor execution, but I think the multiple-sentence approach, even if it is a bit long at times, is better because it allows the writer to get some details in there and make the text more readable.

I'm asking: what are the most misused legal words?

2008-03-25T12:04:00.000-07:00

What are the most commonly misused words in legal writing?

infer/imply?
affect/effect?
compliment/complement?
counsel/council?
discrete/discreet?

Tell me your pet peeves or the one you see the most.

Defending the single-sentence question presented

2008-03-20T11:17:00.000-07:00

I can't.

I teach my students to use multiple sentences and construct the question as a type of syllogism, and I've been doing it for 10 years.

If you teach or use the single-sentence question presented, what are its strengths? Let me cut off two before you reply.

1. Brevity
Some say the multiple-sentence question is too long and single-sentence question is shorter. Not in my view. I limit my multiple-sentence questions to 75 or 80 words, and I routinely see single-sentence questions of 80, 90, or 100 words. In a single sentence.

2. Tradition
I don't think writing a question in a single sentence is worth doing if the only reason is that it's a tradition. There better be other reasons. Good ones.

So . . . ?

It doesn't all transfer that easily

2008-03-20T11:00:00.000-07:00

I read something today that made me realize that lots of folks think that if you're a good writer--if you have a strong knowledge of written English or proven success in some type of writing--then you'll make a strong legal writer.

No.

Even a superb grounding in writing English does not mean you'll be a good legal writer. Or a good fiction writer, or a good poet, or a good news writer, or a good science writer, or anything. Legal writing, despite what many say, is different from other types of writing, just as fiction is different from news writing and poetry is different from science writing.

Yes, a solid grounding in writing is a huge head start to becoming a good legal writer. (Many law students lack it.) But you will still have much to learn about law and the conventions of legal English. Besides, legal writing comes in at least three varieties: objective analysis, persuasion, and drafting. It's complex and idiosyncratic.

Even if you do not have a good background in writing English, you can still become a good legal writer. But the gains will come from your own efforts, study, and practice. Your law-school legal-writing course can only teach you about law, legal English, and legal writing. It can't and won't give you a solid grounding in writing if you lack it.

If you do have a good background in writing, you still might not become a good legal writer. Your legal-writing course can't and won't give you the energy and drive to become a good legal writer if you lack the motivation.

Summaries in legal writing, part 2

2008-03-12T11:54:00.000-07:00

17 Austin Lawyer 6 (Mar. 2008).

Every legal document should begin with a summary of some kind. In part 2 on this subject I highlight the importance of up-front summaries by quoting the experts and then offering advice based on three before-and-after examples.

“All briefs should have a first-page, introductory summary, whether the rules require one or not.” Steven D. Stark, Writing to Win: The Legal Writer 144 (Main Street Books 1999).

“One of my partners says he begins the preliminary statement as if he had 30 seconds on the evening news to pitch his case. He shapes his opening like the lead sentence in a news article--focused and factual.” Kenneth Oettle, Making Your Point 85 (ALM 2007).

“In each part of your legal analysis, give the bottom line first, plainly and without fanfare.” Irwin Alterman, Plain and Accurate Style in Court Papers 97 (ALI-ABA 1987).

These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:

Drop outdated conventions like “single sentence” and ALL-CAPS.
State, but condense, the key details.
Skip formula openers and get to your case.

Before--an 88-word sentence in all-capitals

MAY A LAWYER WHO REPRESENTS A CLIENT IN A CONTINGENT FEE PERSONAL INJURY CASE ENTER INTO AN AGREEMENT WITH A LENDING COMPANY OWNED BY NON-LAWYERS UNDER THE TERMS OF WHICH THE LENDING COMPANY WOULD AGREE TO REIMBURSE THE LAWYER FOR LITIGATION EXPENSES IN THE CASE AS INCURRED AND THE LAWYER WOULD AGREE TO REPAY, IN THE EVENT OF A RECOVERY IN THE LAWSUIT, THE AMOUNTS ADVANCED PLUS A FUNDING FEE EQUAL TO A FIXED PERCENTAGE OF ANY AMOUNT RECOVERED IN THE CASE BUT SUBJECT TO AN AGREED MAXIMUM?

Issue statements need not be phrased in a single sentence; it makes for hard reading. And all-capitals writing is hard to read and comes off as yelling today.

After--drop outdated conventions

In a contingent-fee, personal-injury case, the plaintiff's lawyer arranges for a lender owned by nonlawyers to reimburse litigation expenses as incurred. If the lawyer recovers money, the lawyer will repay the money advanced plus a funding fee--a percentage of the recovery--that is subject to a maximum. Is this agreement appropriate?

Before--abstract and superficial

Whether substantial evidence of record supports the decision that Claimant was not disabled.

In part 1, I advised you to “save tedious factual details for later.” But you must give at least some details or readers can't grasp the underlying issue and distinguish your case from others. Just condense the key details as much as you can.

After--state, but condense, the key details

In Harvey Reiner's disability case, the ALJ summarized the medical and other evidence in a lengthy decision. He considered Reiner's VA disability rating--and used that rating in a hypothetical question to the vocational expert. He also appropriately considered Reiner's alcohol use. The question now is whether substantial evidence of record supports the decision that Reiner was not disabled under the Social Security Act.

Before--a formula opener that repeats available information

COMES NOW the state of Texas, by and through the District Attorney for the 555th Judicial District of Texas, and files this response to the Defendant's Motion in Arrest of Judgment. The State contends that the Defendant is not entitled to the relief he seeks, and would show the court as follows: . . .

This opener tells us the name of the filing party, the nature of this document, and the name of the initial document--all information we can get elsewhere and none of which tells us anything specific about this case.

After--skip formula openers and get to your case

James Overby was convicted of capital murder because he failed to get help after he brutally beat his infant nephew. We ask this court not to intervene in the entry of judgment on that conviction. The indictment and jury charge were sufficient to charge and convict of this offense. They contained the phrase “knowingly or intentionally” when applied to Overby's mental state. Although he asserts that “[t]he use of the disjunctive 'or' allowed him to be improperly convicted for acting knowingly, without acting intentionally,” that is incorrect because "knowingly" implies intention and has been so held by at least two Texas Courts of Appeals.

Teaching Drafting conference

2008-03-05T13:15:00.001-08:00

I will attend and participate on a panel at this conference:

Teaching Drafting and Transactional Skills: The Basics and Beyond

The conference is sponsored by Emory Law School.

Jury Instructions conference

2008-03-05T13:11:00.000-08:00

I'll be speaking at this conference, individually and on a panel:

Writing to Win: Plain Language Jury Instructions

The conference is sponsored by Washburn University School of Law.

Professor Joseph Williams has died

2008-03-04T13:38:00.000-08:00

Joseph M. Williams, 1944-2008. Details here.

I recommend his book, one of the best on writing:

Style: Lessons in Clarity and Grace (9th ed.)

Text beneath point headings

2008-02-20T09:59:00.000-08:00

A reader asks--

In a brief with numbered point headings, should the text immediately after each point heading summarize the point made in that section of the brief, even if it is just a restatement of the point heading in slightly different form? Or should you start the text following a numbered point heading as if the heading itself is the topic sentence of the next paragraph?

I consulted my colleagues, who are experienced teachers of legal writing and who include two former federal judicial clerks, and they all said the same thing, with which I agree:

Make the first sentence beneath a point heading an appropriate topic sentence; do not rely on the point heading itself as a sort of topic sentence. Even if doing it this way makes you feel that you're being redundant, that's fine.

We think that judges and their clerks, not to mention legal-writing teachers, often read the point headings in the table of contents to get a sense of the issues and arguments. Then when they (and we) read the argument section, they skip the point headings.

Summaries in legal writing, part 1

2008-02-13T11:34:00.000-08:00

16 Austin Lawyer 9 (Feb. 2008)

Every legal document should begin with a summary of some kind. This post highlights the importance of up-front summaries by quoting the experts and then offers advice in three before-and-after examples.

All legal writing should be front loaded. It should start with a capsule version of the analysis. It should practice the art of summarizing.

Joseph Kimble, First Things First: The Lost Art of Summarizing, 38 Ct. Rev. 30, 30 (Summer 2001).

By establishing the main points of a document before launching into a detailed analysis of the points, you show readers what information to look for.

Frederic G. Gale & Joseph M. Moxley, How to Write the Winning Brief 107 (ABA 1992).

Why is it important for legal writers to lead with their conclusions? There are three main reasons. . . . [1] It's more convincing. . . . [2] It's easier to read for the first time. . . . [3] A hasty or dimwitted reader can still understand it.

Steven D. Stark, Writing to Win: The Legal Writer 8-10 (Main Street Books 1999).

These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:

give key information early
save tedious factual details for later
prefer specifics to abstraction for legal issues

Here are the examples, before and after:

Before--key information missing
Enclosed please find evidentiary documents, medical records, and affidavits in support of our settlement demand in the personal-injury case concerning Wes Anderton (“claimant”) and your client, Ranchland Properties, Inc. (“RPI”).

Don't leave readers wondering “what's the demand?” They'll skip to the end and read that first anyway.

After--give key information early
This letter contains our settlement offer of $132,500 with supporting medical records, affidavits, and letters.

Another:

Before--necessary but secondary factual detail
On February 10, 2005, the Court of Appeals sustained John Doe's (Doe) complaint that the State's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The State timely filed a motion for rehearing on February 14, 2005. The Court of Appeals denied the State's motion for rehearing on March 2, 2005. The State then timely filed its petition for discretionary review (PDR) on March 16, 2005. This Court granted the State's PDR on September 28, 2005, with the notation that no oral argument would be permitted.

Five dates in one paragraph is a lot of secondary detail to wade through.

After--save tedious factual details for later
The Court of Appeals sustained John Doe's complaint that the state's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The state sought a rehearing, which the Court of Appeals denied. The state then filed a petition for discretionary review; this Court granted the petition but without oral argument.

Another

Before--an abstract issue
On September 13, 2005, defendant was convicted in the Jackson County Court of a violation of MRS 28-445(b). He was sentenced to 5 to 20 years. On appeal to the Court of Appeals, the sentence was affirmed. We reverse.

When framing a legal issue, some detail is necessary to get the reader grounded.

After--prefer specifics to abstraction for legal issues
The defendant was convicted of delivering between 50 and 225 grams of cocaine, which presumptively requires a prison term of 10 to 20 years. But the trial court concluded that there were substantial and compelling reasons for departing from the statutory mandate, and imposed a term of 5 to 20 years. We hold that the trial court inappropriately considered a factor that was not objective and verifiable: the defendant's expression of remorse. We thus reverse and remand to the trial court for resentencing.

Coming soon: more advice and more examples.

Plain-English advocate picks on lawyers. Ouch.

2008-02-05T08:35:00.001-08:00

Why do lawyers write so that no one can understand them? They say it is because they need to be precise, and that their language has been honed by centuries of litigation. But this is baloney. The real reason is that, although they are paid for their skill with words, most lawyers are dull and clumsy writers who have not broken the bad habits they learned as students.

--Mark Adler of Clarity, an international association promoting plain legal language.

Choosing topics for sentences

2008-02-04T12:25:00.000-08:00

16 Austin Lawyer 13 (Dec. 2007 & Jan. 2008) (updated from a post on Nov. 2, 2007)

This piece is about dates, witnesses, and cases and their frequent appearances in topic sentences.

Dates are not topics
In reading several briefs recently, I noticed that the facts often had a series of three, four, or even five consecutive paragraphs beginning with a date. “On September 30, 2006, . . .” Next paragraph: “On December 17, 2006, . . .” And so on.

It's common advice to omit a flurry of irrelevant dates: “Avoid over-chronicling--most dates are clutter.” So says Judge Mark Painter in his book The Legal Writer: “We don't know what . . . if any, dates we should remember.” But even when dates are relevant, they're not the real topics. When you begin a paragraph with a date, you're saying the rest of the paragraph is about the date. That's usually not true.

Witnesses are not topics
I sometimes see facts sections in which a series of paragraphs each begin with the name of a witness. It looks like this: “Dr. Cynthia Rao examined the claimant and testified that . . .” Then “Dr. Robert Eaton, a psychiatrist, examined the claimant . . .” And so on.

It's common advice to avoid presenting the facts by witness: “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor.” Judge William Whitbeck, Michigan Court of Appeals. More to the point, are the witnesses truly the topics you are writing about? Usually not.

Cases are not topics
In documents containing legal analysis, I often see a series of case descriptions beginning with “in” and a case name: “In Whitmon v. McCarthy Supply Co., . . .” Then “In Anderson Consulting, Inc. v. Genier, . . .” And so on.

Again, there's already solid writing advice on this: “Avoid starting any paragraph with the classic prepositional In phrase with the case citation serving as the object of the preposition.” C. Edward Good, Mightier than the Sword 181 (1989). In most legal analyses, the cases are not the real topics.

Why dates, witnesses, and cases?
Lawyers use dates, witnesses, and cases as topics for an obvious reason: it's easy. It's a default approach to organizing. I say default because the topics are already there. You do not apply fresh insight to determine the topics yourself and organize accordingly; you use the topics you've already got--dates, witnesses, and cases.

When you default to an approach that is already there, you do save time, energy, and effort. But you walk straight into this universal paradox of writing: easy to write is hard to read.

Good writing is hard
The reverse of the paradox is also true: easy to read is hard writing. So when you write, figure out what the real topics are, organize around those topics, and use them in your topic sentences.

For example, in a brief responding to a claimant's appeal of a denial of disability benefits, your topics are probably the impairments the claimant alleges. Organize around those impairments and insert the dates and the witnesses as necessary.

In a memorandum discussing the standards for equitable adoption, your topics are the factors the courts consider. Organize around those factors and cite the cases as support for your assertions.

Creating your own topics is hard work, but it produces readable, persuasive writing.

Writing for nonlawyers

2008-02-04T12:20:00.000-08:00

16 Austin Lawyer 13 (Nov. 2007)

When writing for nonlawyers, some of us maintain a misguided sense of professionalism, which can lead to an unnecessarily formal writing style that ignores audience needs.

Young lawyers, I forgive. They don't always know which legal words and constructions are necessary and which are fluff. Besides, they're learning a new language. Their goal is to master legal language, whatever it is. So when young lawyers try to “sound like a lawyer,” I forgive them.

But experienced lawyers ought not write for nonlawyers in a fluffy, legalistic, hyper-formal style. The expert's goal should be to shed legalese. The expert's goal should be to communicate, not to impress. The expert's goal should be to not “sound like a lawyer.” Besides, almost no one is impressed by traditional legal language: Latinisms, Elizabethan usage (that's the 1500s), and ten-dollar words--not to mention long sentences, stilted constructions, and over-abstraction.

Yet I've had lawyers tell me they need to write in a formal, legalistic style so clients will be intimidated; the intimidated client needs the lawyer. I've had lawyers tell me clients prefer and expect traditional legalese; it reassures them. And although no lawyer has ever said it to my face, some lawyers take pride in sounding stuffy and formal because that's the way lawyers are supposed to sound. It's as if the writing carries this not-so-subtle message: “I'm a lawyer, and don't you forget it.”

I question these positions. And I'm not alone in suggesting that writing in a way that confuses the client is a bad thing: “We cannot in justice to our job expect the client to employ us to interpret our own documents nor should we require him to consult our professional brethren for this purpose.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 72 (1967).

Note the date: Mr. Parham said that 40 years ago.

You might ask what's wrong with having a big vocabulary of sophisticated words? Nothing's wrong with having--it's the using:

So if you have a big vocabulary and know a lot of rare and fancy words, that's fine. Be proud of your knowledge. It's important in reading and in learning. But when it comes to using your vocabulary, don't throw those big words around where they don't belong. . . . It's a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.

Rudolf Flesch, How to Write Better 25, 35 (1951).

Ultimately, I believe clients prefer and respect those who can write in everyday English:

If the clients can read the contract more easily and resolve contract questions themselves, doesn't that mean fewer billable hours for the lawyer? My experience is that clients--on both sides of a negotiation--respect the lawyer's ability to express ideas clearly. When they see good writing, they are less likely to try to do it themselves. While most business people can fake “legalese,” writing in plain English takes practice. It takes real talent to express complicated legal, technical, financial, and commercial ideas in a straightforward way.

David T. Daly, Why Bother to Write Contracts in Plain English?, 78 Mich. B.J. 850 (1999).

As Daly says, writing clearly about complicated topics is hard work. But it's worth trying.

Mind your prepositions

2008-02-04T12:13:00.000-08:00

16 Austin Lawyer 13 (Oct. 2007)

We should write sentences that convey our meaning and keep the reader engaged. We should write sentences that flow. That can be hard in legal writing, but we can learn. This article discusses two preposition problems that can spoil engaging, flowing sentences. When you use excessive prepositions and compound prepositions, you chop your sentences up and bog your reader down.

Excessive prepositions
A sentence with too many prepositional phrases can become stilted and choppy. See Joseph M. Williams, Style: Ten Lessons in Clarity and Grace 42 (8th ed. 2005). A stilted and choppy sentence is hard to read and hard to read quickly. Consider this one:

A knowledge of correct trial procedures is the duty of all of the members of the bar of this state.

This sentence has 5 prepositional phrases in 21 words. And you'll agree, I hope, that it's an awkward little thing. But now we have better terminology; we don't just say it's awkward, we say it has too many prepositions. When we edit, we focus on removing them:

All state-bar members must know correct trial procedure.

Now we have no prepositions and a more vigorous sentence. Here's another example:

There is no current estimate of the number of boxes of records in possession of the schools.

(You think I'm making these examples up? No. This is a real sentence written by a real lawyer.) Here we remove only four out of five prepositions--because not all prepositions are bad--and we get a stronger sentence, although we do have to add an actor:

We have not estimated how many boxes of records the schools have.

So when you edit, look for short bursts coming at you in waves. Maybe you have too many prepositions. Or look for prepositions specifically. You'll engage your readers more effectively if you cut excessive prepositions.

Compound prepositions
Compound prepositions are longer, fancier versions of regular prepositions. Here are my favorites:

in order to
for the purpose of
with reference to
in connection with
with regard to
with a view toward
in the event of
on account of
by means of
in conjunction with

If you want to sound stuffy and stiff, sprinkle these throughout your writing. See Bryan A. Garner, The Winning Brief 243 (2d ed. 2004). They have a formal flavor:

We prepared the interrogatories in conjunction with the Popsey matter hastily, in order to meet the discovery deadline.

In this sentence, in conjunction with and in order to serve no purpose but to make the sentence longer and more formal. Simplify them:

I prepared the interrogatories for the Popsey matter hastily to meet the discovery deadline.

Here's another simple idea made fluffy with compound prepositions:

Gail said she wanted to discuss something with me in connection with my legal memo with a view toward improving my writing.

For writing that moves--that flows--prune the compound prepositions:

Gail said she wanted to discuss something with me about my legal memo, so I could improve my writing.

When you edit your document, spot and remove excessive prepositions and compound prepositions. Your readers will appreciate it.

All-capitals not necessarily conspicuous

2008-02-04T10:17:00.000-08:00

“Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”

In re Bassett, 285 F.3d 882, 886 (9th Cir. 2002).

Hat tip to Ken Adams.

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