Tuesday, August 30, 2005

Ending a sentence with a preposition

"It was once a cherished superstition that prepositions must be kept true to their name and placed before the word they govern . . . . The fact is that the remarkable freedom enjoyed by English in putting its prepositions late . . . is an important element in the flexibility of the language."

H.W. Fowler, Fowler's Modern English Usage 473-474 (2d ed., Ernest Gowers, ed., Oxford 1965).

(Fowler was writing in the 1920s, by the way.)

Under this supposed rule, we get sentences like this:
  • I am providing a copy of various university regulations of which you should be aware.
Why not "that you should be aware of"?

Check any source on English usage. All that I have checked say essentially this: End a sentence with a preposition if avoiding it would sound awkward or pretentious.

Thursday, August 25, 2005

Begin your motions well

Stop opening your motions with virtual boilerplate about what the motion is and who is filing it. Get to the point. Here is a real motion opener (names have been changed) and a revision.

Original

RESPONSE OF FAQ OPERATING LIMITED PARTNERSHIP AND RUTTER, LLC TO MOTION OF HENRY H. HINEMAN FOR STAY PENDING APPEAL

Plaintiffs, FAQ Operating Limited Partnership ("FAQ") and Rutter LLC ("Rutter"), by their attorneys, Amber T. Green, Sanjay Adeep, and David P. Hurst, state as follows in response to Defendant Henry H. Hineman's ("Hineman") motion for stay pending appeal:

. . .

Revised

FAQ and Rutter's Response to
Hineman's Motion for Stay Pending Appeal

Hineman, believing he can succeed on appeal to the district court, seeks to stay the effect of the remand orders this bankruptcy court entered on February 25. But Hineman is incorrect in his analysis under Bankruptcy Rule 8005 and is unlikely to prevail on appeal for four reasons:
  1. He has not met and cannot meet the "strong showing" of likely success required as a threshold inquiry under Rule 8005;
  2. He cannot show that he will suffer irreparable injury absent a stay;
  3. A stay could substantially harm other parties in the litigation; and
  4. He cannot show that a stay is in the public interest.
Hineman fails on all counts, and the request for stay should be denied.

. . .

For further reading, see Beverly Ray Burlingame, On Beginning a Court Paper, 6 Scribes J. Leg. Writing 160 (1997).

Tuesday, August 23, 2005

Verb-agreement question

Question

Which is correct?
  1. Plaintiff, Jane Doe, individually and as representative of the estate of John Doe, files this complaint . . .

  2. Plaintiffs, Jane Doe, individually and as representative of the estate of John Doe, file this complaint . . .

Answer

I think number 1 is correct.

What we are really asking is whether we have one plaintiff or two, right? Depending on how you answer that question, both 1 and 2 could be correct. You match the verb to the subject:

"Plaintiff . . . files . . ."

Or

"Plaintiffs . . . file . . ."

Here, I believe we have one plaintiff who acts in two capacities. So I think "Plaintiff . . . files . . ." is correct.

Here is some support from Garner's Modern American Usage:
    If a sentence has two or more singular subjects connected by and, use a plural verb. Yet if the subjects really amount to a single person or thing, use a singular verb."
Bryan A. Garner, Garner's Modern American Usage 753 (Oxford U. Press 2003).

I think what we have in number 1 is what Garner describes in the second sentence of the quotation.

Monday, August 22, 2005

More bad drafting

I find bad legal drafting everywhere, and here's some more:

This admittance ticket constitutes a license. Violation of a law or university regulation while attending the event for which this license was issued may result in revocation of the same and previously granted thereby. All persons, including children, must present a ticket to enter. All persons must hold and keep their ticket stub.

Thursday, August 18, 2005

Casebooks are hard to read

Have you ever considered that the reading you did in law school contributed to the way you write today? Here's a view from one writer who thinks casebooks are badly designed for reading:
    In contrast [to the user aids in a West-published opinion], casebooks assigned to beginning law students are stripped of even these convenient guides. Instead, students are presented with pages of choppy, edited opinions without headnotes, subtitles, white space, colored print, or other textual highlights. They are expected somehow to glean from the few headings provided (usually a chapter title and a single subheading) the substantive context of the case and why the author has chosen to include it in this particular section. Then they are expected to wade through the unstructured text and pick out the uncontroverted facts, the disputed legal and factual issues, the procedural history, the rules, holdings, rationales, and analysis of the opinion. They must then extract the rule and understand its underlying policies. They are sometimes "assisted" in this task by the placement of several highly abstruse questions (usually assuming a great deal of contextual knowledge that the students lack) at the end of the excerpted case. They must come to class prepared not only to discuss the case, but to transfer application of its rules to new hypothetical fact situations that the teacher presents to them on the spot. For anyone this would be a daunting cognitive load; for the beginning law student it is stultifying. Is it any wonder that law students rely so heavily on commercial outlines and canned briefs to provide the structure that is so sadly lacking in the texts they read?
Janeen Kerper, Let's Space Out: Rethinking the Design of Law School Texts, 51 J. Leg. Educ. 267, 268-69 (2001).

Wednesday, August 17, 2005

Do judges prefer formal writing?

Question

Professor Schiess,

Have you ever had trial judges complain because writing was too informal, or not "legalistic" enough?

I embrace your principles of simpler, clearer writing, but I wonder if sometimes judges grade down because the writing is not formal and traditional.

Answer

It's a legitimate question.

I don't practice in front of trial judges anymore, and I don't have current survey data on their writing preferences. But I read what judges write, and those who write about their preferences all say they prefer simple, direct, and plain writing. (Of course, what I consider plain may not be what a judge considers plain.)

The last survey I'm aware of was conducted in Michigan in 1987 and reproduced in Florida and Texas in 1990. In those surveys, over 80% of the judges preferred writing that was in plain English. So the overwhelming majority of judges do not prefer a highly formal writing style.

But apparently some do. About 15-20% it seems, from the data.

Yet I remain convinced that all judges appreciate clear, direct, simple writing. Frankly, I want to meet the judge who actually prefers long sentences, Latin phrases, Elizabethan usage, and lofty diction.

Still, I concede that for the formal parts of a document and for the format, you may sometimes encounter a judge who thinks "Hey, this looks different," and subconsciously, "Different is bad." I know attorneys who pride themselves on plain English but who still format their motions as they always have, i.e., in an old-fashioned way.

Tuesday, August 16, 2005

Garner on contractions

What's it going to take to convince you that contractions are okay in legal writing? Here is the biggest expert on legal writing in the country:
    Legal writers have developed a morbid fear of contractions. Maybe that's because they tend to counteract stuffiness--and legal writers everywhere tend to think they should sound stuffy. That's a major psychological cause of poor writing.

    In fact, the more conversational your style is, the more readable it becomes. This doesn't mean that you should become loose and slangy in your writing--just that you should try to be relaxed and natural. And contractions contribute a lot to that effect.

    Here's the test. If you would say it as a contraction, write it that way. If you wouldn't, then don't.
Bryan A. Garner, Securities Disclosure in Plain English 22 (CCH 1999).

Monday, August 15, 2005

A bit on formality

Dear legal-writing teachers:

Please stop telling us we shouldn't use dashes in legal writing. We can. Many lawyers do. It is an effective and useful punctuation mark when used in moderation.

Please stop telling us we can't use contractions in legal writing. We can. More of us should. Perhaps you tell us not to use contractions because that's an easy rule to teach and to follow. But writing is complicated. Most rules aren't that absolute. The better rule here is not "no contractions." The better rule is "Be wise in using contractions; perfect your ear and use contractions where they will improve the flow of your text and speed up reading."

Please stop telling us we can't use the first and second person. Again, the better rule does not prohibit them but suggests we must be careful in using them; overuse sounds juvenile. But writing around the first and second person often leads to a stilted, stiff tone--a tone that is not very readable.

I could go on. But in short, stop enforcing excessive formality. Stop telling us that legal writing is formal. That's just another way of saying legal writers are trying to sound important. We should not try to sound important. We should write so our text is as clear to our readers as it can be. And sometimes that means using dashes, contractions, and the first and second person.

Friday, August 12, 2005

Cynical about the canons

These authors have well expressed what I think of the "canons of construction" or "rules of interpretation" applied to construe drafted documents:
  • Most of the so-called rules of contract interpretation are not really rules at all. They are more like guiding principles that the courts adhere to with varying degrees of consistency . . . . Almost every rule has an exception or offsetting rule, with the plaintiff relying on one rule and the defendant on another.--Thomas R. Haggard, Contract Law From a Drafting Perspective 62 (West 2003).

  • In truth, these "principles" are merely guidelines--presumptions that may be weak or strong depending on circumstances. Sometimes they are called "rules"--"rules of construction"--but in fact they are all rebuttable.--Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 38 (Cambridge Univ. Press 2001).

  • If the plain-meaning rule provides the result the court thinks is appropriate in the case, it will use it. If not, it will go outside of the words of the statute to external sources . . . .--Robert J. Martineau, Drafting Legislation and Rules in Plain English 30 (West 1991).
Yes, I'm cynical about them, and I think legal drafters ought to all but ignore them when drafting.

Tuesday, August 09, 2005

3 suggestions for the ticket

Improving the atrocious ticket I quoted yesterday is not terribly hard. But you must remind yourself you are speaking to members the general public, and you must actually want them to understand. Once you have those two things in mind, three principles of plain English drafting (what I call "consumer drafting") apply:
  1. Use you and your for the consumer, ticket holder, patron, etc., and use we, us, and our for the management, owner, ticket issuer, etc. Nothing will do more to streamline and simplify consumer drafting than this. In the atrocious ticket, you could avoid these words: management, holder, and holder of this ticket.

  2. Cut every legalism, jargon word, and fancy word. In the atrocious ticket, this means words like license, termination, authorization, compensation, foregoing, irrevocably, designees, and utilize.

  3. Shorten the sentences. Reduce the content to some core ideas and state those directly and succinctly. For example--"You cannot take pictures or videos of anything in the Museum, and you cannot make audio recordings of anything in the Museum."
It is possible to draft legal text so people understand.

Monday, August 08, 2005

Ticket text is atrocious

Here is the text from the back of a ticket I bought. Given the size of the Museum and the resources at its disposal--and considering the amount I paid for the ticket--I think the text here is atrocious. The Museum should be embarrassed.

I ask again: who writes this garbage? Nonlawyers who are cobbling the text together from archaic and poorly drafted forms? Lawyers who are out of touch with modern English, modern legal drafting, and their own inner human being?
    This ticket is a revocable license, subject to termination with denial of admission at management’s discretion upon refund of the purchase price. The resale or attempted resale of this ticket without express written authorization from the Museum is grounds for seizure and cancellation of the ticket without any compensation. The holder of this ticket is subject to denial of admission or removal from the Museum and its premises without compensation should the holder act in a disorderly manner or violate any of management’s rules and regulations. The holder of this ticket agrees not to engage in any photography or reproduction, or to transmit or aid in transmission, in any form, of the materials contained in, performed at, or owned by, the Museum. Holder consents to the search of any or all bags, packages or any other containers brought to the Museum or its premises. Any violation of the foregoing by holder automatically terminates this license. Holder irrevocably grants permission to the Museum and its designees to utilize the holder’s image, persons or likeness in connection with any broadcast, recording, photograph or other reproduction in connection with the Museum’s entertainment, marketing or promotional activities and any other related purposes.
Flesch readability score is 16: at the low end of Very Difficult. Bad bad legal drafting, I say.

Friday, August 05, 2005

Amending articles of incorporation

Suppose you are drafting an amendment to the articles of incorporation for a corporate client. Suppose it looks like this:

    FIFTH AMENDMENT TO ARTICLES OF INCORPORATION OF RAYMAR, INC.

    This is the Fifth Amendment (the "Amendment") to the articles of incorporation of Raymar, Inc. (the "Articles"), a Delaware corporation, and is dated August 5, 2005.

    The Articles are amended as follows:

    ARTICLE 1. Section 4(b)(3) of the Articles is amended by replacing "December 31, 2005" with "December 31, 2006."

    * * *

Does the use of the word "article" cause any confusion here? The drafter has used it in two senses. We can figure out that the defined term "Articles" is different from the term "ARTICLE," which is used to designate the parts of this amendment.

But isn't there a better way to do this--one that has less risk of confusion? And isn't it a fundamental rule of legal drafting not to use the same word to mean two things?

Couldn't we use "SECTION" instead of "ARTICLE"? Or better yet Section. Or even better, omit the term and just start with "1"?

What do you think?

Wednesday, August 03, 2005

A small writing mis-take?

From the New York Times:
  • Congress is on the case. It dropped everything last week to pass a bill to protect gun makers from shooting victims' lawsuits.
This means the bill will keep gun makers from shooting (firing a weapon at) victims' lawsuits. Why would gun makers shoot at victims' lawsuits? Doesn't do much good to shoot at lawsuits. You gotta answer them, not shoot them, right?

Should have been--
  • Congress is on the case. It dropped everything last week to pass a bill to protect gun makers from shooting-victims' lawsuits.
It just needed a hyphen.