Plain-language task force

I'm meeting this morning with the Texas Pattern Jury Charges plain-language task force, for which I am the drafting consultant.

Key questions:

• Will I be able to persuade them to use "But" instead of "However," to begin a sentence?
  
  
• Will I be able to persuade them to abandon the word preponderance?
  
  
• Will I be able to get them to use "indirect evidence" instead of "circumstantial evidence"?

Oh the excitement.

Critique others' writing and walk on thin ice

I just read the first paragraph of one chapter of a book on legal writing. I had thumbed through the first few chapters until I found one whose topic interested me. That first paragraph seemed a bit dry and stuffy, so I paused to figure out why.

The paragraph had 8 sentences, and it had 8 passive-voice constructions in those 8 sentences. And that's being kind. It probably had 10--depending on how picky you want to be.

Now I ask you: is that good writing?

Even given the reality that passive-voice is not evil and that it has its uses, isn't an average of one per sentence a bit much? I think so.

Now, the thin-ice part (because maybe my own writing ain't so great): I encounter far too much mediocre writing in books and articles by legal-writing teachers.

Why?

Sentence problem 12--legal wordiness

Sometimes we use too many words. Sometimes we find the longest way to say something and then add to it.

Some wordiness comes from a sense that lawyers must be thorough. And we must. Some wordiness comes from a sense the lawyers must be accurate. And we must. But most wordiness comes from a failure to edit and cut. So learn to edit and cut.

Poor: In the early years of the century, lawyers were brought into corporations primarily as a response to the increasing pervasiveness of governmental regulations, which required frequent consultation with lawyers by corporate management, who sought legal advice from someone knowledgeable about the company's business and more aware than an outsider of the objectives of the enterprise.

Better: In the early 1900s, corporate managers began to bring lawyers in house. These managers were responding to increased government regulations, which required frequent consultation with lawyers. The managers also wanted lawyers who knew more about the corporation's business than outside lawyers would.

--Excerpted from Better Legal Writing

Sentence problem 11--throat-clearers

When you lead in to an idea with a little phrase to get you started or to provide emphasis, you are using a "throat-clearer." It's as if you are saying, "I have something to say now. Listen up."

The universal advice of writing experts is to drop these phrases and write the sentence in a way that emphasizes the idea without the useless throat-clearer. For example--

Weak: It should be noted that the amount in controversy exceeds $75,000.

By dropping the throat-clearer ("it should be noted that"), you may be sacrificing a slight emphasis. You can usually think of a better way to achieve that emphasis.

Better: In fact, the amount in controversy exceeds $75,000.

Weak: It is important to remember that the client must make the final decision.

Here again, we might lose a small sense of emphasis when we remove the throat-clearing phrase "it is important to note that." But try this:

Better: The client--not the lawyer--must make the final decision.

--Excerpted from Better Legal Writing

Sentence problem 10--excessive formality and legalistic tone

Lawyers should stop trying to impress others with pompous tone, over-formality, and lawyerly-sounding language. Generally, excessive formality breeds ill-will, not respect. Besides, it's no longer 1903. Or 1953.

Old: A true and correct copy of the foregoing affidavit is being provided you herewith.

Better: I have enclosed a copy of the Baker Affidavit.

Poor: The clerk of the court undertook to prepare documentation for the instant case prior to receiving said item of correspondence.

Better: The court clerk prepared the paperwork for the Hasbro Company case before receiving the arbitrator's letter.

--Excerpted from Better Legal Writing

Sentence problems 9--faulty parallelism

"Express related ideas in parallel form" is common writing advice. Easier said than done, it seems. So let's be explicit: when you express a series of items, phrases, or ideas, parallelism requires two things:

1. Each item, phrase, or idea must flow naturally from the lead-in, and
2. All items, phrases, and ideas in the series must begin with the same part of speech.

One way to check your parallelism is to tabulate the phrases and check that each flows from the lead-in and that the first word in each is the same part of speech: verb, preposition, or noun. Here's an example:

• A lawyer must disclose adverse authority that is known to him, arises from the controlling jurisdiction, and that was not disclosed by opposing counsel.

As tabulated--

• A lawyer must disclose adverse authority that
  is known to him,
  arises from the controlling jurisdiction, and
  that was not disclosed by opposing counsel.

This sentence has flaws in both requirements of parallelism:

1. The third tabulated item does not follow from the lead-in:
   that . . . is known,
   that . . . arises from,
   that . . . that was not disclosed (this one doesn't work)
   
   
2. The beginning words are not in the same grammatical form:
   is and arises are verbs;
   that is not a verb.

Consider two ways to fix these problems. Repeat the lead-in word each time:

• A lawyer must disclose adverse authority that is known to him, that arises from the controlling jurisdiction, and that was not disclosed by opposing counsel.

Or revise so that the first words of the items are in the same grammatical form:

• A lawyer must disclose adverse authority that is known to him, arises from the controlling jurisdiction, and was not disclosed by opposing counsel.

Here's another:

Poor: Now that you are in law practice, you are a professional writer, and you should be aware of writing sources, usage dictionaries, and strive to improve your writing style.

Better: Now that you are in law practice, you are a professional writer, and you should be aware of writing sources, consult usage dictionaries, and strive to improve your writing style.

--Excerpted from Better Legal Writing

Sentence problems 8--verb and object distance

Just as you can annoy your reader by separating the subject and verb, you can annoy the reader by separating the verb from its object. If the object--the thing receiving the action of the verb--is separated from the verb by long, intervening phrases, you tax your reader. Again, better writers generally keep their verbs and objects together.

Poor: The judge eventually wrote, on behalf of her colleagues at the Court of Appeals and with hesitation because of her own prior involvement in the property-sales transaction at issue in the trial, an opinion affirming the dismissal of the case.

Better: On behalf of her colleagues at the Court of Appeals, the judge eventually wrote an opinion affirming the dismissal of the case, despite her hesitation because of her own prior involvement in the property-sales transaction at issue in the trial.

Poor: The attorney general did not believe, despite exhaustive investigations not only by the state's staff attorneys but also by the private lawyers retained to handle the civil matter, the version of the facts that the accused was telling.

Better: The attorney general did not believe the version of the facts that the accused was telling, despite exhaustive investigations not only by the state's staff attorneys but also by the private lawyers retained to handle the civil matter.

--Excerpted from Better Legal Writing

Sentence problems 7--subject and verb distance

Remember what I said about the passive voice changing the expected order of the typical English sentence? You get the same poor result--confusion and frustration--when you separate the subject from the verb by long, intervening phrases. Often, the sentence will be easier to read and more forceful if you keep the subject and verb close together and add the modifying phrases afterward.

Poor: The trial brief in the Hampton Industries litigation, though it exceeded the court's page limitation by eight pages and was full of incorrect citations, long footnotes, and grammar errors--including a sentence fragment--was filed on time.

(Notice the distance between the subject, brief, and the verb, was.)

Better: Counsel filed the Hampton Industries trial brief on time, though it exceeded the court's page limitation by eight pages and was full of incorrect citations, long footnotes, and grammar errors--including a sentence fragment.

Poor: At the closing, the buyer, who, despite his relative ignorance of the risks was set to become the successor-in-interest to the seller, Raytan Company, and every other prior owner of the property, whether known or unknown, disclosed or undisclosed, was still not represented by counsel.

Better: At the closing, the buyer was still not represented by counsel. He was not represented by counsel even though he was relatively ignorant of the risks. He was not represented by counsel even though he was set to become the successor-in-interest to the seller, Raytan Company, and every other prior owner of the property, whether known or unknown, disclosed or undisclosed.

--Excerpted from Better Legal Writing

Sentence problems 6--misplaced modifiers

When a sentence begins with a dependent clause or phrase that describes a noun, the noun it describes should come immediately after the clause or phrase. If it does not, the modifying clause or phrase "dangles" or is misplaced.

Sometimes misplaced modifiers strike the reader as humorous because the modifying clause or phrase is applied to a noun in a way that seems funny.

Odd: Though not yet accepted by the scholarly community, I have nonetheless engaged in a thorough discussion of this theory.

What is not yet accepted by the scholarly community? The author (I) or the theory? The next two sentences are better versions of the same idea.

Better: Though not yet accepted by the scholarly community, this theory is one that I have nonetheless thoroughly discussed.

Better: Though this theory is not yet accepted by the scholarly community, I have nonetheless thoroughly discussed it here.

Here is another example:

Odd: Speaking forcefully and passionately to the jury, the case was won by defense attorney Juliet Anson.

Better: Speaking forcefully and passionately to the jury, defense attorney Juliet Anson won the case.

--Excerpted from Better Legal Writing

Sentence problems 5--expletives

According to usage experts, "expletives" are wasted words that serve only to fulfill the requirements of English grammar. The most common examples are the often unnecessary phrases "it is," "there is," and "there are." When possible, delete these phrases and rewrite; the result will be stronger, more direct sentences.

Weak: There are some clients who just want to be vindicated.

Better: Some clients just want to be vindicated.

Weak: It is unrealistic to plan a deposition for Friday afternoon.

Better: Planning a deposition for Friday afternoon is unrealistic.

--Excerpted from Better Legal Writing

Sentence problems 4--compound prepositions

If using a lot of single-word prepositions does not clutter things up enough for you, you can use multi-word prepositions, often called "compound prepositions." I'm against them, and here is a list of common ones:

in order to
for the purpose of
in reference to
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

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

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

Poor
The senior attorney said she wanted to discuss something with me in connection with my legal memo with a view toward improving my writing.

Better
The senior attorney said she wanted to discuss something with me about my legal memo, so I could improve my writing.

Root these long, compound prepositions out of your writing.

--Excerpted from Better Legal Writing