The legal-writing teacher who makes mistakes

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I make writing mistakes. My students and colleagues will tell you so. I’m not the world’s greatest proofreader; I’m easily distracted and lazy and hasty. Yet I can be judgmental about others’ mistakes. So I try to soften my judgments and practice patience, hoping it will be reciprocated. Several years ago, I wrote this about mistakes. It contains a confession.

A former student sent me this comment, carried in a major newspaper, from a senior partner at a law firm:

Do not ever for the second time give your senior a piece of writing with a typo or a grammatical mistake. I will take it once and I will tell the junior my set speech. But if it happens again? Well, find out for yourself.

I have three problems with this statement.

1. The speaker is talking about litigation writing. (If you visit the firm’s website and look this person up, you’ll see that the person is a litigator.) My former student rightly points out that this kind of expectation is probably unrealistic for some transactional drafting:

I’m not a bad writer, but far from perfect. On occasion I miss small errors in my work. I might draft a 160-page credit agreement, based on a form that itself had errors. Some of those errors are minor, such as a stray parenthesis, misplaced comma, etc. Others are more serious and could lead to ambiguity. Of course, I try to catch everything, but I don’t think I’ve turned in a perfect draft once yet. Nor have I seen a perfect document yet from other attorneys unless the document is very short.

Perfect work is rare, but perfect work in the context of a 160-page credit agreement is likely impossible on the first draft. Of course, the speaker is thinking of a motion or a brief or a memo. These are rarely more than 50 pages and are often much shorter. So the speaker should have qualified his remarks for the context in which he works.

2. I think the speaker’s statement is hyperbole, intended to scare young lawyers. Of course, you must proofread your work carefully—very carefully. You should try to turn in perfect work every time. But you must acknowledge that it is not possible to turn in perfect work every time. For example, I wrote a 230-page book, which I proofread myself and had two others proofread. I later found 4 typos in it. I was chagrined and dismayed and embarrassed. But that’s life. Perfect work is rare. In truth, it’s unusual for me to read a book—and I read almost exclusively books about writing—and not find at least one mistake. So the speaker should be more realistic. Besides, the speaker’s not perfect either . . .

3. The speaker makes mistakes, too. This is often what those who claim to expect perfect work forget or seem blind to. I read the speaker’s profile on the firm’s website, and I found two mistakes. Granted, they were fine points of punctuation (and I’m not talking about the serial comma, which the speaker does not use, by the way). But they were mistakes according to the Texas Law Review Manual on Usage and Style, The Redbook, and The Chicago Manual of Style.

So there.

Mastering the dash, Part 2

In Part 1, I said the dash follows few rules and is a flexible mark with many uses. With all those possibilities, how do you decide when to use a dash? Consider two key writing goals: breaks and emphasis.

According to June Casagrande in The Best Punctuation Book, Period, you can use the dash to indicate “breaks in a sentence” or “a change of sentence structure or thought.”[1] The dash signals a new direction, often abruptly, and might replace a heavier transition word:

  • Kaye will sell the yacht. However, the buyer must have financing within 30 days.
  • Kaye will sell the yacht—if the buyer has financing within 30 days.

The period signals a full stop. Here’s a new idea. The semicolon signals a pause; here’s a related idea. The dash signals a break—here’s something important. We saw this in an earlier example:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

Dashes emphasize. In The Redbook, Bryan Garner calls the dash “a forceful and conspicuous punctuation mark.”[2] In the earlier example about Calhoun’s statement, the paired parentheses downplay the inserted clause, the paired commas are neutral, but the paired dashes emphasize it.

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

Writers can also use a single dash to point, and that pointing is emphatic. In the following example, the second version highlights the lack of permission, and it’s all in the dash:

  • Jeffrey deleted the paragraph without checking with his co-author.
  • Jeffrey deleted the paragraph—without checking with his co-author.

As for the myth—I’ve met lawyers and teachers who frown on the dash, saying it’s too informal for legal writing. Some legal-writing teachers won’t allow their students to use it. I disagree. The dash is entirely appropriate for legal writing, especially persuasive legal writing. Yes, overuse might be a problem, so exercise judgment, but you should add the dash to your writing tool kit.

[1] June Casagrande, The Best Punctuation Book, Period 118, 119 (2014).

[2] Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.51 (3d ed. 2013).

Mastering the dash, Part 1

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Let’s get to know the dash. It’s good for breaks and pauses, emphasis and force. In Part 1 I’ll explain how to create the right dash and go over some rules. In Part 2 I’ll discuss several good uses and try to dispel a myth.

The dash discussed here is the em dash. It’s a long, horizontal punctuation mark—like these—and should be distinguished from the en dash – like these – a shorter mark with different uses. On a typewriter, you create a dash by typing two hyphens with spaces on either side. Are you using a typewriter? Then don’t use two hyphens. “Use real dashes,” says Matthew Butterick in Typography for Lawyers.

To get the em dash in Word, type two hyphens, leaving no space on either side. Word should automatically convert that into an em dash. If you put a space before and after the hyphens, Word will convert that into an en dash, which is the wrong mark. (Yet so many writers use spaces that the shorter en dash is ubiquitous despite being technically wrong.)

You can also insert an em dash directly with the Insert Symbols function or with keystrokes: alt + 0151. On a Mac, hold down the Shift and Option keys and press the Minus key. Note that copying and pasting sometimes converts an em dash to a hyphen—a glitch you’ll want to catch when you proofread.

Rules? The dash obeys few rules. It’s flexible. You can use it in place of commas, colons, parentheses, periods, and semicolons.

In place of a comma:

  • It was the seller who balked, not the buyer.
  • It was the seller who balked—not the buyer.

In place of a colon:

  • The courts assess three factors: purpose, type, and effect.
  • The courts assess three factors—purpose, type, and effect.

A pair of dashes in place of a pair of commas or parentheses:

  • Calhoun’s statement, which was false, blamed the problem on Scoville.
  • Calhoun’s statement (which was false) blamed the problem on Scoville.
  • Calhoun’s statement—which was false—blamed the problem on Scoville.

The dash can even replace a period or semicolon, separating independent clauses:

  • Chen does not object to the fee. She asks that it not be disclosed.
  • Chen does not object to the fee; she asks that it not be disclosed.
  • Chen does not object to the fee—she asks that it not be disclosed.

With all these possibilities, how do you decide when to use a dash?

That’s Part 2.

_____

Intensifiers Part 3: You’re Literally Killing Me

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Part 3 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. These days, legal writers might even be tempted to use the word literally. I’ve got some bad news about literally, but I’ve got good news, too. It will make you so happy you’ll literally be walking on air.

Linguists and others who study language agree: In speech, the word literally is becoming an all-purpose intensifier like highly, clearly, and extremely. That’s the bad news, and there’s nothing much we can do about it. Language changes, and sometimes it changes for the worse. (Did you know that long ago, the frozen dessert was called iced cream? Incorrect pronunciation and spelling over time changed it to ice cream. It’s happening with iced tea, right?)

That’s why we hear nonsensical statements like these:

  • he was literally glowing
  • she was literally rolling in dough
  • my head literally exploded

But in legal writing, which values precision, we shouldn’t follow this trend. So even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this trendy sense of literally in legal writing. “The delays were such that the buyers were literally banging their heads against a wall.”

Now the good news. I did a search for the word literally in appellate briefs filed in the Austin Court of Appeals, the Texas Court of Criminal Appeals, and the Texas Supreme Court. I got nearly 2000 hits, and I skimmed dozens of them. I couldn’t find any genuinely erroneous uses of literally. There were some close calls, but overwhelmingly, brief writers use literally when they mean . . . literally. Hurray for these:

  • The court concluded that, literally applied, the ordinance’s definition of “nonconforming use” is at odds with the ordinary meaning of that term.
  • Aerofile denied that Hanson’s attempted forfeiture was effective because Hanson failed to strictly and literally comply with the notice provision.
  • The statute can be read both literally and rationally.

Let’s keep it that way.

Intensifiers Part 2: Replace and Specify

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Part 2 of 3.

As legal writers, we might be tempted to use intensifiers to bolster our points—to persuade. Yet often, the better advice is to avoid the intensifier. Last week I suggested dropping the intensifier. Here are two more suggestions.

Replace it.
With some thought, you can delete an intensifier-plus-verb and intensifier-plus-noun constructions and replace them with a single, forceful word. So—

  • completely wrong > inaccurate, incorrect, mistaken, unsound
  • extremely smart > brilliant
  • highly capable > accomplished, proficient
  • quickly went > hustled, sped, rushed
  • very sure > certain

Again, develop an editorial sense. Replacements don’t always work; sometimes the single-word option is loaded. If instead of very bad you write terrible or dreadful, you might interject undesired subjectivity or emotion.

Specify.
Rather than rely on a vague intensifier, legal writers can use details to emphasize. Here’s a classic example:

2. It was very hot.

2a. It was 103 degrees in the shade.

Here’s another example of specifying (with two more persuasion techniques: a dash and a sentence that ends with key words):

3. The transaction at issue obviously did not take place at Eason’s residence.

3a. City detectives set up a controlled purchase with a cooperating defendant at Jay’s Auto Body. It was there that Eason handed over a bag of methamphetamine—not at Eason’s residence.

As you can see, specifying takes more words, and so, as with all writing, exercise editorial judgment. Weigh the longer, specific description against the shorter, vaguer (and weaker) one.

Next week: Part 3 will literally knock your socks off.