Thursday, August 31, 2006

Plain English: write for the nonlawyer

Lawyers need to take a different approach to legal writing. We have an obligation to communicate clearly and efficiently: with our clients, with our colleagues, with our opponents, and with the general public. We cannot continue to pretend that legal writing is meant to be read and used only by lawyers.

Michele M. Asprey, Plain Language for Lawyers 8 (2d ed., Federation Press 1996).


The mark of a well-written opinion [or any legal document] in any event is that it is comprehensible to an intelligent layperson.

—Judicial Writing Manual 6 (Fed. Jud. Ctr. 1991).

Better Legal Writing
Writing for the Legal Audience

Wednesday, August 30, 2006

The memo: format--typeface

For the traditional legal memo, choose a serifed typeface for the main text. Serifed typefaces are those with the little extensions--serifs--at the ends of the strokes. Times New Roman, Garamond, and Palatino are serifed typefaces. Generally, serifed typefaces look more formal and are often considered more professional. Historically, they have been proven to be more readable.

Sans-serifed typefaces have no serifs and tend to look more modern or trendy. They include Arial, Futura, and Verdana. You can use sans-serif typefaces for headings--the contrast makes them stand out--but avoid them for the main text of a memo unless those you work for recommend them.

Better Legal Writing
Writing for the Legal Audience

Friday, August 25, 2006

Law school: what we make students read

Lucidity does not come naturally to most law students, perhaps because they have been forced in their legal studies to read so much bad writing that they mistake what they've read for the true and proper model.

--Tom Goldstein & Jethro K. Lieberman, The Lawyer's Guide to Writing Well 30 (U. Cal. Press 1989).


[T]he current legal writing reformers undoubtedly do good, especially those who try to help lawyers avoid writing like a lawyer. Some, however, may miss the target altogether because they fail to realize that lawyers are being continually exposed to law books, the largest body of poorly written literature ever created by the human race.

--Frederic G. Gale & Joseph M. Moxley, How to Write the Winning Brief:
Strategies for Effective Memoranda, Briefs, Client Letters, and Other Legal
Documents
134 (ABA 1992).

Monday, August 21, 2006

Plain English: interview with Joseph Kimble

You might enjoy this interview with Joseph Kimble, law professor, editor in chief of the Scribes Journal of Legal Writing, and drafting consultant for the new Federal Rules of Civil Procedure:

Read it here

The author is Roy Jacobsen, who produces Writing, Clear and Simple, and who says of himself:

I have been writing and editing for more than 20 years in a variety of fields, including health food, academia, and most recently, software development. I’m currently a freelance writer and editor, and I’m also a contributing editor for The Editorial Eye, "a resource for writers, editors, designers, project managers, communications specialists, and everyone else who cares about contemporary publishing practices."

Friday, August 18, 2006

Plain English: question about shall

I received this:
    Dear Mr. Schiess:

    I just revised our Early Head Start Policy Council (PC) Bylaws and took out all the legalese in favor of simple, clear language our parent PC members can understand.

    Do you think bylaws need to contain the word shall, as in "The purpose of the Policy Council shall be . . ."? I changed them all to will in hopes of not intimidating our parent volunteers. But now I am wondering.
(Yet another example of the way outdated, shoddy legal drafting seeps into the real world and makes life difficult.)

I say this:
    No, the bylaws do not need to use shall. It's archaic and, in the sense you describe, incorrect.

    By the way, you say you revised it to "The purpose of the Policy Council will be . . ." That's better. But why not frame it in the present tense instead of the future? "The purpose of the Policy Council is . . ."

    And congratulations on revising legalese into plain English. I wish more people had the guts to cut through the legalese, ask questions, and write clearly.


Thursday, August 17, 2006

Punctuation: comma after introductory element

Sometimes we assume that the comma after an introductory phrase or clause is optional--no big deal to leave it out. But this sentence proves that sometimes leaving it out creates real problems:
    If a store patron is attempting to steal the shopkeeper should be able to determine if a theft was committed by asking the suspect questions.
I like to use a comma after my introductory elements. I know this is "heavy" punctuation and that college writing teachers often don't require the introductory comma. But college teachers are usually teaching students to write fiction or essays. I'm teaching a form of technical writing.

I want the introductory comma.

Wednesday, August 16, 2006

Sources: Elements of Style is not enough

If you are a serious lawyer who cares about writing, The Elements of Style will take you only so far. It's a great book, written by a professor (Strunk) and his student (White) at Cornell--a superb institution with a tremendous law school and a beautiful campus "high above Cayuga's waters . . ." In fact, if you have a chance to read any book by a lawyer who went to Cornell, you should do it. Now.

Better Legal Writing
Writing for the Legal Audience

Anyway, back to Strunk & White, which will take you only so far. If you are serious about improving your legal writing, you'll need a serious guide. I recommend--

The Redbook: A Manual on Legal Style by Bryan A. Garner

It is a comprehensive guide to professional-level legal writing and will answer any question about correctness and style. The second edition will be out soon.

Tuesday, August 15, 2006

Sources: The Elements of Style

From the excellent legal-writing blog the (new) legal writer, by Raymond Ward, this note:
  • Recently I was admitted to the Bar of the U.S. Court of Appeals for the Eleventh Circuit. In yesterday's mail, my certificate of admission arrived--accompanied by a copy of The Elements of Style by William Strunk Jr.andd E.B. White. Perhaps this is the court's way of suggesting that lawyers follow Strunk's and White's rules when writing briefs, motions, and other papers.
I commend the Eleventh Circuit for promoting good writing and for encouraging lawyers to follow The Elements of Style.

In fact, I know of a case in which the judge, exasperated by the lawyer's shoddily written complaint, recommended the same book:
    To assist plaintiff's attorney, the court . . . recommends that plaintiff's attorney study William Strunk, Jr. & E.B. White, The Elements of Style.
Politico v. Promus Hotels, Inc., 184 F.R.D. 232, 234 (E.D.N.Y. 1999).

Ouch. (I discuss that case and others like it in chapter 15 of my book, Better Legal Writing, linked below.)

But I must ask, how far will Strunk & White take you in mastering legal-writing style? I answer that tomorrow.

Better Legal Writing
Writing for the Legal Audience

Friday, August 11, 2006

Legal drafting: expensive comma--more precision

I wrote yesterday about a contract in which a comma ended up costing one party the deal it thought it had made. I proposed a rewrite of the entire provision in two sentences instead of one:
  • This agreement continues in force for five years from the date it is made. After the first five-year term, it continues in five-year terms unless either party terminates it by one-year's prior written notice.
My friend Ken Adams discussed the same provision here and proposed a rewrite of the entire provision that also used two sentences instead of one:
  • The initial term of this agreement ends at midnight at the beginning of the fifth anniversary of the date of this agreement. The initial term (including any extensions in accordance with this section 12) will automatically be extended by consecutive five-year terms unless no later than one year before the beginning of any such extension either party notifies the other in writing that it does not wish to extend this agreement.
Ken is a high-level, professional contract drafter. I am a legal-writing teacher and plain-language zealot. That may be enough to explain the differences in our approaches to the problem, but I'd like to be more specific. Ken did more than eliminate the ambiguity. He added precision that was not present in the original.
  1. He added precision about the ending of the first five-year term ("midnight at the beginning of the anniversary . . .").
  2. He added precision about the one-year notice period ("no later than one year before . . .").
  3. He clarified that this section governs all subsequent extensions ("including any extensions in accordance with this section . . .").
The kind of precision Ken added would have been valuable in a contract like the one containing the "expensive comma." According to the news article, the expensive comma cost about$2 million.

Better Legal Writing
Writing for the Legal Audience

Thursday, August 10, 2006

Legal drafting: the case of the expensive comma

A recent news report from Canada discussed a contract that was canceled because an unnecessary comma allowed one party to get out of the deal. Here is the sentence:
  • This agreement shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.
One party believed the contract was good for at least five years, and the other party believed it could get out anytime with one-year's notice. I think the two commas frame a parenthetical insertion, and you could read the sentence without the insertion like this:
  • The agreement shall continue in force for a period of five years from the date it is made unless and until terminated by one year prior notice in writing.
This reading favors the party who wants to get out anytime with one-year's notice, and that's what happened. The article suggests that if the second comma had been omitted, the five-year term would have been clear. Agreed. In fact, if the five-year term is intended, neither comma is needed.

I'd simply like to suggest you can make the five-year term clear without worrying about commas--if you're willing to write in short sentences:
  • This agreement continues in force for five years from the date it is made. After the first five-year term, it continues in five-year terms unless either party terminates it by one-year's prior written notice.
The original sentence has 39 words--not terribly long--but the revision has two sentences with an average of 19 words. (Of course, I made other changes to render it plainer. I couldn't help myself.)

Better Legal Writing
Writing for the Legal Audience