My ten principles

Here are ten clear-writing principles I teach my students:

1. Use effective, readable typefaces and type sizes.
   
2. Keep sentences and paragraphs short.
   
3. Use headings to create obvious, large-scale organization.
   
4. Use moderate enumeration and tabulation for small-scale organization.
   
5. Use concrete nouns as subjects; use concrete verbs.
   
6. Prefer active voice to passive.
   
7. Avoid unnecessary Latin, formal words, and jargon.
   
8. Cut unnecessary words.
   
9. Punctuate correctly.
   
10. Test documents on the intended audience before finishing them.

Coming posts will expand on each one.

Accepting plainness

When I spoke at the Legal Rhetoric Symposium, I talked about simplifying legal texts that are meant to be read and understood by the public. One thing I said was that in my drafting classes I gave my students assignments and told them to rewrite drafted language for the general public. I talked about the resistance I sometimes get. But I gathered from the comments of some at the symposium that the resistance out there is greater than I realized.

I had thought plain language was making real inroads in many areas. The SEC requires prospectuses to be in plain language. The Federal Rules of Appellate Procedure and of Civil Procedure have both been revised into a much plainer style. California revised its pattern jury instructions into plain language. And so on.

But do lawyers still get a lot of resistance to plain language?

If you begin a motion in this way:

• Iron Industries moves to dismiss Andrew Hampton's complaint for failure to state a claim, and Iron presents these three arguments to supports its motion: . . .

Are you told to change it to this?

• COMES NOW Defendant Iron Industries, Inc. (hereinafter "III"), by and through its counsel of record, and in support of this its Motion to Dismiss, would respectfully show unto this Honorable Court as follows: . . .

If you take out

• WHEREFORE, PREMISES CONSIDERED

Are you told to put it back in?

If you write this

• Under section 343, we cannot remove the item without a court's permission.

Are you told to write it like this?

• Pursuant to section 343, permission of the court must be obtained prior to removal of the item.

And if you write this:

• "Property" means 2802 Lemon Court, Austin, Texas.

Are you told to write this instead?

• "Property" shall be deemed to have the following meaning: 2802 Lemon Court, Austin, Texas

And on and on. Is plain writing still rejected?

More on memos

Yes, lawyers still write memos. I have been told that memos are still used in these ways:

• As assessments of the writing ability of law students working at a law office for the summer.
  
• As precursors to advice letters to clients: "Now convert that memo into a letter to our client, advising on the X matter."
  
• As precursors to persuasive motions, trial memos, or briefs: "Now convert that memo into a motion for summary judgment in the X case."
  
• As due-diligence evidence of legal research.

I wrote all of these kinds of memos when I was a young lawyer working at a law firm. This was a big law firm, with wealthy clients, so I also wrote traditional legal memos that senior lawyers relied on to make decisions.

But often I was told--for the traditional decision-making use--to simply "give me an answer." Despite that request, I eventually got into the habit of writing a full and traditional memo even when asked just for the answer; I realized that I produced a better answer when I had worked through the analysis and authorities in the way that writing a traditional memo required me to.

Besides, I was often asked follow-up questions that were easier to answer if I had a thorough memo in the file.

I found that often the "just the answer" approach led to the "just read the authorities" approach. When you don't have to write down a thorough analysis, you tend to read the authorities once and spit out a less-than-ideal answer. But when you must write the analysis down, you must do more than read the authorities once. You must think about them, read them again, reconcile them, synthesize them, and you must do so in a coherent and readable way. So you get much more comfortable with the authorities and analysis, and you become more confident that your analysis is right.

I recommend to young lawyers that when time and clients allow it, you should prepare a thorough memo even if you aren't asked for one. Pare it down when you turn it in, but go through the process of preparing it. And I tell senior lawyers that when you ask for "just the answer," you are indirectly asking for a second-best product.

Passive voice

I once heard a very fine lecture about the passive voice and why it gets such a bad name. The speaker said that we, as readers, expect and prefer our sentences to proceed like this:

actor > action > thing acted upon

The judge > applied > the rule.

In fact, he said we find this order easiest to understand. Note that this pattern follows the subject-verb-object order as well. But when we write a sentence in the passive voice, we change this preferred and expected order:

thing acted upon > action > [actor]

The rule > was applied > [by the judge].

This order is less than ideal; we disrupt the preferred order, or we reverse it. Even though it is still subject-verb-object, it's the actor-action order that is key for readers. That's one reason the passive voice is undesirable in professional writing: it disrupts the expected, preferred, and easiest order for our readers.

Here's another reason: Notice that the actor is in brackets. That's because, in a passive sentence, you can omit the actor. Omitting the actor can be frustrating for readers. "The rule was applied." By whom? Don't leave your reader asking that question.

Sure, sometimes the actor is irrelevant or is not the focus of the sentence. "What about the rule?" "The rule?" "Yes, the rule." "Oh, the rule was applied." Here we are talking about the rule, and it is the focus. But most of the time we are talking about actors doing things, and the passive voice allows us to omit the actor. Think carefully before you do.

The passive voice also allows you to obscure the actor by placing the actor at the end, in a prepositional phrase. "The rule was applied . . . by the judge." This frustrates readers, too, because the actor is generally the most important thing to know, and the reader must wait until the end to get that information.

And the passive voice usually requires more words:

The judge applied the rule. (5 words)

The rule was applied by the judge. (7 words)

Other things being equal, the shorter way of saying something is always better. Always.

Finally, a document full of passive-voice sentences will put your reader to sleep faster than a warm office and 106 legal memos.

Improve your writing

Are you committed to improving your legal writing? I mean from every perspective: grammatical correctness, precision, correct usage, simplicity, directness, persuasion, and more. If you are, then I recommend these books:

Rudolf Flesch, How to Write Plain English (Harper & Row 1979).
Tom Goldstein & Jethro K. Lieberman, The Lawyer's Guide to Writing Well (2d ed., U. Cal. Press 2002).
David Mellinkoff, Legal Writing: Sense and Nonsense (West 1982).
Bryan A. Garner, The Elements of Legal Style (2d ed., Oxford U. Press 2002).
John R. Trimble, Writing with Style: Conversations on the Art of Writing (2d ed., Prentice Hall 2000).
Joseph M. Williams, Style: Ten Lessons in Clarity and Grace (6th ed., Longman 2000).
Patricia T. O'Conner, Woe is I: The Grammarphobe's Guide to Better English in Plain English (Riverhead Books 1996).

That's enough for now. More to come.

"pursuant to"

I despise the phrase "pursuant to."

It's not evil or even really bad, but it is used almost exclusively by lawyers. So it's a phrase that says to the reader, "a lawyer wrote this." And I don't want that message to be a part of my writing. Granted that for most of my writing, the reader knows I'm a lawyer. Still, I dislike displaying the fact that way.

When I was practicing law, I worked for a lawyer who on occasion put "pursuant to" into a letter I had written. I did the first draft, and he revised it for his own signature, so he had the right to add "pursuant to." But it bothered me, and I developed a strong negative reaction to the phrase. It's not rational with me, I know.

I went so far as to banish it from my vocabulary in about 1991. I haven't used it since. And I criticize it in my books and writing whenever I can.

It does carry multiple meanings: "under" and "according to," will often be more precise.

More on writing memos

A reader's response to "Does anyone write memos?"

• My view is that that the chief culprit is not laziness, or even lack of time (though those are contributing factors). The real villain is money. Beyond the big hourly-rate cases oft-handled by large firms, most legal work will not support the cost of creation of the traditional memorandum. The clients will not (or cannot) pay for the hourly rate time required for it and do not perceive it to be any benefit to their bottom lines.

That's right, I think, and it jibes with what Bryan Garner said in A Dictionary of Modern Legal Usage in 1995:

• 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 than it can complete in a given span of time. Garner's DMLU2 at 518.

So writing professors plow on, planting the seed of the traditional memo and hoping it grows into an understanding of legal analysis and the ability to adapt to other types of legal writing.

I've got 106 "seeds" on my desk right now.

Correcting people

I was in a meeting with a dozen people, when someone said, "We are facing a windfall because we have eight people leaving in the next two months." And later,"Since these people are leaving, we are bracing for a windfall."

Well, of course, that's the opposite meaning of "windfall." It actually means an unexpected or undeserved gain, not a dramatic loss.

Should I have spoken up and corrected this mistake? Some say yes. Those who know correct English usage, some say (and here I'm thinking of John Simon, who recommended this in his book Paradigms Lost), should defend it and correct it; we should work to preserve and uphold high standards of English usage in speaking and writing. But it makes you look like a snob.

I usually let it go unless it's my own kids.

On that point, my daughter, 16, has taken to saying "whenever" in place of "when." She says, "Whenever Steve was at our house last week, he helped me fix the fence."

I tried to explain that by using "whenever" she is saying "each time he was at the house" and that if she means a particular time, she should say "When Steve was at our house . . ."

Of course she eagerly noted this in her "Correct English Usage" notebook, which she carries with her always, and then thanked me for the valuable insight.

Why plain English?

In December 2004, I was hired to revise several transactional documents into plain English. The client was a large, build-on-your-lot home-construction company, which hired me to revise these home-construction documents into plain English:

• home construction contract
  
• home construction contract with financing
  
• deed of trust
  
• promissory note
  
• arbitration agreement

Why would a company do such a thing? The original documents were working, the documents were not causing the company any major problems, and the project cost time and money. So why do it? I asked the lawyer I was working with. Here's what he said.

The main reason for the change was a change in management; the new management believed that the old documents were not up to industry standards and were hurting sales because they were so hard to read and understand.

He gave other reasons, too:

• Sometimes the arbitrators chosen to resolve disputes with customers are not lawyers; the plain English documents would help ensure that the arbitrators understood what the company's documents really said.
  
  
• The sales staff out there selling the homes needs to be able read and understand the documents.
  
  
• Regulators and licensing bodies of many types need to read and understand the documents on occasion; the plain English documents would make it easier to show the regulators and licensing bodies what the company was doing or planning to do.
  
  
• The Better Business Bureau would be better able to understand the plain English documents. When customers complain to the BBB, it’s nice if the BBB can read and understand the documents
  
  
• New management also thought that in general, everyone connected to the business should be able to read and understand the documents.

Plain English happens. And it's not always pushed along by zealots, like me, or by government mandate (as with state plain English laws or the SEC plain-language rules). Sometimes companies see its value. For more on this topic, see Joseph Kimble, Writing for Dollars, Writing to Please, 6 Scribes J. Leg. Writing 1 (1996–1997). This piece proves that plain English is worth it in dollars and cents.

Does anyone write memos?

Do young attorneys write memos anymore? I assume they do, and I teach my students how, but I wonder what's going on out there.

I hear reports from students that "They didn't want a memo; they just wanted the answer [oral report, list of cases]." Or worse, "They just wanted the answer in an email." I hear that government law offices don't do them much or that public interest organizations don't do them much. I hear that large law firms still do--but only in the summer.

What's the reality?

Legal writing teachers tend to view the traditional memo as a core tool in legal synthesis and analysis: the building block for problem solving, client advising, and brief writing. I think that's right. I also think that telling a young lawyer "Don't write a full memo; just give me the answer" is short-sighted.

It is in doing the synthesis and analysis that the you master the issues and the authorities. And that mastery will be much better, in my view, if the young lawyer is required to write out the synthesis and analysis in clear prose. There's nothing like writing a formal document to expose hasty, faulty thinking.

So I'm committed to teaching the traditional legal memo.

Memos are in

I just had 105 student-written memos land on my desk.

The legal issue my students are writing about is the conspicuousness requirement in UCC 2-316(b). So my students are writing about ALL-CAPS and boldface type and headings and other things relating to presenting text. Weird?

Yes.

It's not your typical research-memo topic in a law school writing course, but I'm tired of the typical. I wanted something that I'm genuinely interested in. I'm hoping that reading these memos won't be as mind-numbing as usual. 105 memos on the same topic is usually enough to drive me to the Web to browse around all day, wasting time. And 105 memos on the duty of a car-rental company to warn customers of crime risks in a distant city . . .

Or how about the right of a parent to waive her child's pre-injury negligence claims . . .

Well, you get the picture. BOR-ing. Now, at least, the subject I'll be reading about relates to writing--legal drafting specifically. Can I come up with writing problems that relate to writing from now on? We'll see.

Symposium report

Three straight hours of answering student writing questions today. Can I take much more? Memo due at 1:30 tomorrow, so it will end eventually.

My presentation at the Legal Rhetoric Symposium at American University Washington College of Law went well. If anyone reading this was there, feel free to comment.

I most enjoyed the remarks of Jill Ramsfield and Christopher Rideout on voice in legal writing. I thing that there is definitely voice in legal writing--the idea that legal writing lacks voice is wrong. Even the idea that legal drafting lacks voice--which I could quote you a great source on--is not quite right. I could have my colleague Professor Meyer draft a contract and then ask you to compare it to my contract on the same subject, and you would discern differences even if the substance was the same. What else is that but voice?

The appropriate use of voice in legal writing, it seems to me, is to know exactly how much of your autobiographical voice (yourself), the discourse-community voice (the voices of other lawyers), and institutional voice (the law) to include in a piece of writing given its audience, purpose, and constraints.

More on rankings soon . . .

On legal writing rankings

The U.S. News ranking of legal writing programs lists this top ten:

1. Mercer, Seattle
3. John Marshall (IL), Stetson
5. Temple
6. Brooklyn
7. UNLV
8. Boston College, Villanova
10. Northwestern, Michigan

I know very little about the legal writing programs at any of these schools. I bet they have good programs. I bet I could find out about their programs with a little effort--perhaps I will. And I bet their program summaries sound great. (In case you didn't know, when the idea of rankings was discussed on the LWI listserv, someone suggested that we all post a summary of our programs to a website, so those who received surveys from U.S. News could read about the programs.)

I set up that background to make clear that what I'm about to say does not mean I think that these schools' programs are overrated. Their programs may be great.

But I will point out that at least 5 and perhaps 7 of the schools listed there have a writing professor--sometimes two--who are nationally known and who are highly visible in legal writing circles.

Does this mean strong programs attract great people?
Does this mean great people build strong programs?
Or does this mean that name recognition and visibility are the keys to getting ranked?

Thoughts?

My speech at conference

I am traveling to Washington D.C. tomorrow evening to give a talk at the Third Annual Legal Rhetoric Symposium at the American University Washington College of Law. Details here:

http://www.wcl.american.edu/legalrhetoric/2005/05conference.pdf

I will speak on "The Art of Consumer Drafting." I plan to tell about several plain-language re-drafting projects I've done and the non-grammar, non-linguistic things I've learned. I'll highlight the change in mind-set, the attitude I learned to adopt.

I'm the last speaker--at 3:30 p.m. on Friday. That means a challenge: tired listeners who would like to get out of there. I hope I can keep them interested. Perhaps I'll draw on my stock of humorous legal writing stories.

US News piece on legal writing

The April 11 issue of U.S. News & World Report contains its annual rankings of law schools (Texas 15th, Cornell 11th--yay). But it also contains an article called Putting a Lid on Legalese. The article discusses how law schools are trying to improve legal writing. Dahlia Lithwick, Putting a Lid on Legalese, U.S. News & World Report 58 (April 11, 2005).

The author, Dahlia Lithwick, covers legal affairs for Slate.com, and she has written a nice piece. It captures what I think is an accurate slice of what's going on in law schools and in practice. We legal writing teachers are preaching plain English, and the practicing bar is perpetuating ponderous, archaic writing:

"Regardless of what they may learn in class, most young lawyers soon learn from older lawyers and judges that it's safer to stick to the old standbys: passive voice, lengthy citations, and voluminous footnotes." Id. at 59.

That still happens, I think, but mostly, it's not older lawyers training young lawyers to write in the old way; it's young lawyers falling into the same lazy, old-fashioned habits that older lawyers have. The old way of writing isn't "safer"; it's just easier.

And of course, the whole situation is more complicated. Some legal writing teachers teach some old-fashioned things. Some teach new ideas that aren't right for legal writing--or that aren't accepted by enough lawyers yet. Some practicing lawyers are great writers. And some are terrible.

The U.S. News piece gives a simplified but generally accurate view.

Only one real quibble. Consider this quotation about what it's going to take for real, permanent change in legal writing:

"But before the nation sees a sea change in the way our statutes and contracts are drafted, the profession as a whole needs to decide--as it has not yet decided--that the days of res ipsa loquitur are well and truly gone." Id.

First, I would have mentioned legal correspondence and perhaps legal briefs as documents that need to be changed, not just statutes and contracts.

Second, res ipsa locquitur is probably a poor example of something that needs to be "well and truly gone." It's a true term of art; it stands for a legal concept, and there is no everyday English equivalent. The author might have used "wherefore, premises considered" or inter alia instead.

Truly a minor quibble.

Best legal writing programs?

U.S. News will include legal writing as a ranked specialty with its law-school rankings this year. The issue is not out, but another blog has listed the ten schools that it says U.S. News will give as the top ten in legal writing.

If that list is accurate, I'd love to comment on it. But I'm not sure if it's wise to comment on it until I'm sure the list is right. I'm holding off for now.

The plan to rank legal writing programs divided legal writing professors when it was announced on the LWI listserv last fall. Some thought it a necessary and beneficial step on the way to due recognition for our field. Others saw it as divisive, promoting competition in a field that has been supportive and helpful.

I think if we want to be treated like doctrinal, tenure-track professors, we'll have to endure scrutiny, rankings, and competition. But I know my school will not rank well: too few credits, too few faculty. So I'm torn.

More to come . . .