Scalia & Garner on writing

For lawyers who write for judges, and for all lawyers who want to improve, I recommend a new book by Bryan Garner and Justice Scalia:

Making Your Case: The Art of Persuading Judges

Lots of great advice.

Fear as a factor in nominalizations

An excellent post from a commenter acknowledges fear as a force in legal writing:

I think much of the problem (to the extent it is one) with legal writing is that it is based upon fear.

Young lawyers fear being wrong. They fear error as though to err is fatal (maybe fatal to your career, but not life-threatening). To limit the chance that they are wrong, young lawyers turn to qualifiers and equivocations. An outgrowth of writing in this way is the difficulty with writing in a strong and direct manner. It is very hard to use powerful action verbs when every sentence contains multiple escape clauses. Lawyers seem to believe, especially in litigation, that they can always salvage the argument or position, so long as there is a way to change their position with mushy language.

How often do lawyers write junk like, "Having evaluated your contentions and considered the applicable authority, it is evident that your client's position is unsustainable," when they could just say, "Your client's interpretation is wrong"? Fear.

The really good writers in the legal field have embraced their fear and just state their position with the confidence that, win or lose, clarity and certainty are better than weakness.

I agree that fear plays a role, but I believe it is not the only factor.

As I'm fond of saying, there is a law-review article here.

Verbs that want to become nouns--why?

One commenter has noticed that lawyers often use nominalizations when another form would sound more natural or be easier to read:

Where do you think they pick up the habit?

he asks.

I don't know, but I have some guesses:

From judicial opinions. But that just begs the question because we must now ask where the judges--who are legal writers, after all--pick up the habit.

From a desire to sound serious and formal. Sure, but how do lawyers know that nominalizations will make them sound serious and formal? No one teaches that overtly.

From a laziness about picking and using strong verbs. Every book on writing that I've ever read has recommended strong, vigorous verbs. But using good verbs consistently is hard work. So maybe lawyers are lazy about some aspects of their writing.

Another commenter hinted at a cause of the nominalization habit when he said plain-language advocates should focus more on:

the underlying grammatical processes that lawyers unconsciously use to create a specialized discourse.

I think this means that lawyers use nominalizatons in part to sound like lawyers--to identify themselves as members of the legal discourse community. Okay, but how do they know that nominalizations will make them sound legal?

More on nouns that want to be verbs

An able commenter has pointed out that converting to a verb form is not the only way to avoid nominalizations:

Sometimes the best alternative to an abstract noun isn't a verb but an adjective. For example, is liable instead of has liability.

And an additional drawback to buried verbs is that like the passive voice, they allow the writer to omit the actor. If you say on transfer to Jones, it's not clear who's doing the transferring. That's why buried verbs are particularly problematic in contract drafting. You don't have that problem if you use a verb: if Acme transfers to Jones.

Good points both.

When verbs become nouns

Lots of legal writing contains nouns that could have been verbs. These nouns wanted to be verbs--they really did. But lawyerly habits and the default patterns of legal writing made these verbs into nouns, and only you can put them back.

Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs. I've even heard them called smothered verbs. What you call them is not important. What is important is that you learn to recognize when you've got nouns that could be verbs and train yourself to return them to their preferred state.

For example, this sentence contains two nouns that wanted to be verbs:

• My expectation was that counsel would make an objection.

If we return these nouns to their verb forms, the sentence improves:

• I expected counsel to object.

This example shows three benefits of using verbs in place of nouns.

By using verbs instead of nouns, you save words: the example went from nine words to five. You save words because using the noun form requires you to add other words to help the noun. When you use the verb form, you can cut the helpers, and that's fine because the helpers usually add little meaning,

By using verbs instead of nouns, you invigorate the text: the verbs in the rewrite are expect and object, which are forceful and strong, where before they had been was and would make, which are bland.

By using verbs instead of nouns, you focus on actions instead of on things or on status; this moves the writing along.

Of course, not all nominalizations are bad. Sometimes they're necessary. But all legal writing would be shorter, more vigorous, and more active if we would let many of our nouns be verbs. And you don't have to take my word for it:

“Watch for and replace nouns created from stronger verbs.” Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007).

“Use base verbs, not nominalizations.” Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006).

“Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.” Tom Goldstein & Jethro K. Lieberman, The Lawyer's Guide to Writing Well 129 (2d ed. 2002).

Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead:

be dependent upon
be in violation of
bring suit against
come to a resolution
conduct an analysis
conduct an examination
enter into a settlement
give notice
make a payment
make a recommendation
make an argument
make an assumption
make an inquiry
make an objection
perform a review
place emphasis on
provide an explanation
take into consideration

Now spot the two nominalizations in this sentence:

• The defendant made a referral to Emily Graves, a financial planner, so Ms. Graves could provide the plaintiff with advice.

The two nominalizations, along with their helpers, are made a referral and provide . . . advice. By using verbs, we lose the helpers, enliven the text, and focus on actions:

• The defendant referred the plaintiff to Emily Graves, a financial planner, so Ms. Graves could advise the plaintiff.

So when you write, spot the nouns that could be verbs and, when you can, return them to their livelier form.

Roy Mersky has died

Roy Mersky, or "RMM" to many of us, died yesterday. He was the director of the law library here at the University of Texas School of Law. He was a giant in the field of law libraries. He was also my friend.

When I wrote an article or a book, Roy would send me a note of congratulations. He would also often congratulate me in person. He encouraged me in my writing and teaching. He created opportunities for me. He promoted my work to others.

Why did he do all these things for me? It wasn't because I was doing anything for him--I wasn't. And it wasn't because I had the power or potential to do things for him in the future--I didn't. Maybe he liked me. I don't know.

What I know is that all he did for me meant a lot to me.

What clients will pay for

Oops. I meant the title of this post to say: "For what clients will pay."

Yesterday a commenter reminded me that most lawyers are too busy to polish their work as much as they should. I agreed. Today, a commenter pointed out another reason lawyers don't polish their writing as they should:

Clients aren't willing to pay to have perfect work product. More often than not, clients are pragmatic: they want "good enough" to get what they want.

This is also true. Let's take contracts for example. Only a tiny percentage of contracts end up in litigation. Almost all of them get the job done even though they aren't well polished. If that's true, the rational client should want the mediocre contract that gets the job done and not the polished contract that also gets the job done but that costs twice as much.

But a commenter who has been a client responds that, apparently, not all clients feel that way:

I have been a client. No litigation, no contracts, so perhaps my comments don't count. But in letters between my attorney and their attorney, I wanted careful editing (in fact, I edited them myself), no unnecessary words, polish, and highly intelligent writing.

So we must acknowledge that some clients want perfect written work. But it is telling, I think, that this client had to do some of the polishing herself. Would she have been just as insistent on a well polished letter if it had cost $250 instead of $150?

The busy-ness of law practice

A commenter writes:

The problem is that, ironically, legal practice discourages good writing. . . . [One] reason is that most lawyers take on more work than they can do well. It may be their own fault, but they don’t have enough time to edit and proofread their writing.

This is true, and the commenter is not the first to acknowledge it:

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 that it can complete in a given span of time.

Bryan A. Garner, A Dictionary of Modern Legal Usage 518 (2d ed., Oxford U. Press 1995).

I've quoted this on my blog before, but it is true.