Some dangling modifiers okay?

In this sentence, there's a dangling modifier:

• Researching the issue, it became clear the courts had not addressed the question.

This is a classic dangler because the person doing the research is not named anywhere in the sentence. Most legal-writing types consider it a serious mistake.

But in The Fight for English, David Crystal says we're bent out of shape over nothing. No one in a million years, he says, would be confused here. It's obvious that an unnamed author is understood. Sure, dangling modifiers sometimes cause ambiguity:

• Surrounded by barbed wire, armed soldiers guarded the prisoners from watchtowers.

Who is surrounded? The dangler makes it ambiguous. But in the first example, there's no ambiguity. Don't insist on an edit, Crystal says, that fixes what isn't broken, what isn't ambiguous.

What do you think?

David Crystal, The Fight for English: How Language Pundits Ate, Shot, and Left 153 (Oxford U. Press 2006).

Morton Freeman on light connectors

At a recent seminar, I suggested beginning sentences with light connectors (and, but, or, and others) to punch up the text, enhance readability, and move the reader along. But one senior lawyer said, "anyone who writes for me better not do it." Too bad.

By the way, it's not my idea, and it's not new. Morton Freeman, former author of the Grammatical Lawyer columns published in The Practical Lawyer magazine, said this in 1979:

Good writers sometimes use and or but or even or to begin a sentence. This placement of a conjunction shortens the pause occasioned by a preceding period, creates emphasis, and starts a summing up. It knits the thought that follows with the preceding sentence or, at times, indicates an afterthought. [It lets you] avoid cumbrous, formal connectives--moreover, nevertheless, nonetheless, furthermore, and however.

One more thing: A comma, unless otherwise called for, should not follow these conjunctions when they begin a sentence.

--Morton S. Freeman, Grammatical Lawyer 218 (ALI-ABA 1979).

Garner on analysis: beginning, middle, end

Bryan Garner on beginnings, middles, and ends in analytical legal writing:

In analytical and persuasive writing, you need a beginning, a middle, and an end.

The ideal introduction concisely states the exact points at issue. Stripped of all extraneous matter, the intro serves as an executive summary: it places the essential ideas before the reader.

* * *

Each part of the middle will be organized to do the following:

• Elaborate the legal premises embedded in the issue statement.
• Show how the factual points fit into the legal premises.
• Deal with counterarguments.
• Drive the point home with an additional reason or set of reasons.

That's the basic way to organize the argument for each issue.

* * *

The conclusion should briefly sum up the argument.

Bryan A. Garner, Legal Writing in Plain English: A Text With Exercises 55-56 (U. Chicago Press 2000).

Book recommendation: Making Your Point

I recommend this book:

Making Your Point: A Practical Guide to Persuasive Legal Writing

by Kenneth Oettle.

It's a compilation of short essays on fine points of persuasive writing from an experienced litigator and appellate specialist. It presents lots of practical advice.

Choosing topics for topic sentences

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,” 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,” says Judge William Whitbeck of the 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,” says Edward Good in Mightier than the Sword. 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.