More on “weak” legal writing

When asked to define “weak” legal writing, I began listing traits that I think make legal writing weak. I continue my list here.

Abstraction. Legal writers sometimes focus heavily on concepts and principles and ideas—instead of concrete things and actions.

Over-intensifying. In trying to persuade, some writers overuse intensifiers like blatantly, clearly, completely, extremely, highly, obviously, plainly, substantially, totally, very, and wholly.

Avoidance of personal pronouns. Although not always appropriate, many client memos could use you/your and we/us/our instead of proper names, initials, or abstract descriptors. So this [on law-firm letterhead]:

  • Great Mountain Savings Association (“GMSA”) has requested that this firm address whether Board Resolution 17-009 (“BR 009”) was validly approved. BR 009 was approved on …

becomes this

  • You asked us whether Board Resolution 17-009 was validly approved. The Resolution was approved on …

Backing in. Too often, we begin a document, a section of a document, or a paragraph with background information or with the first event chronologically—then build to the key point. Legal writing is usually better front-loaded: key point first, background second. So this

  • You asked us whether Board Resolution 17-009 was validly approved. The Resolution was approved on …

becomes this

  • You asked us whether Board Resolution 17-009 was validly approved. Our opinion is that the Resolution was validly approved. The background and analysis follow. …

Missing chances to tell stories. We legal writers are sometimes guilty of dumping information on top of information when structuring the content as a story would be more inviting—and compelling. It’s not always possible to turn a tax memo into a pleasant narrative, but many legal documents have a statement of facts that could be told as a story.

 

What is “weak” legal writing?

A reader submitted this question:

I have a colleague who often says, “Legal writing is weak.” He has never elaborated, so I’m wondering, in the context of analytical legal writing for a memo or brief, what does this mean? What makes legal writing “weak”?

Here’s my response.

“Weak” is a vague description, but it’s typical of the way we describe writing. We have a feeling that something isn’t good or strong, but we aren’t always able to articulate why. So I’ll try to be specific. (Obviously, a document with grammar and punctuation errors is weak. Let’s put those kinds of errors aside.) When I read legal writing I consider “weak,” here are the most likely causes—often many of them are present.

Over-hedging. Failing to come to a concrete conclusion or recommendation. Overusing phrases like to some extent, it is likely that, in most circumstances, it might be the case that, and so on. Overusing the stereotypical qualifying words: appears, basically, essentially, generally, might, maybe, perhaps, primarily, probably, seems, slightly, somewhat, and virtually.

Passive voice when active is more appropriate. The emails were deleted. (By whom?) Or The emails were deleted by Rogers instead of Rogers deleted the emails. Passive voice isn’t wrong, but it obscures or hides actors and is longer than the active voice.

Over-nominalized writing. Heavy use of nouns when verbs would be more vigorous. Make a payment instead of pay. Or The company achieved project completion instead of The company completed the project.

Over-formality. Big words when small ones would do. The company completed the project instead of The company finished the project. Or Cramer utilized the data reflected in the report instead of Cramer used the data shown in the report.

General wordiness. Prior to for before, subsequent to for after, with regard to for about, in connection with for for, and so on. Closely related to over-formality.

Overuse of be verbs. Beginning too many sentences with there is, there are, there were, it is, it was, and similar constructions.

More to come.

Some best practices for 1L legal writing

Dear 1L,

You’re about to enter law school, so you’re about to take a legal-writing class. I’m jealous. I didn’t have a legal-writing class in my first semester of law school. My Civil Procedure professor gave me an assignment to write a memo but provided no instruction or guidance. A teaching assistant gave me a few comments—no grade. But that was 30 years ago. Your class will be different, and it will be a challenge. Here are some best practices that can help you succeed on your legal-writing assignments.

Outline. Yes, I know—no one outlines anymore, and that’s too bad. There’s solid proof that outlining improves writing in both form and content. In a book called The Psychology of Writing, Dr. Ronald Kellogg showed that students who outlined got two benefits: (1) they composed faster, typing more words in the same amount of time, and (2) they wrote more correctly, making fewer grammar and punctuation mistakes. Why? One of the important tasks in writing is ordering the content. By outlining first, these writers could devote more brain power to content and correctness—they didn’t have to worry about ordering as they wrote because they had outlined beforehand. These benefits of outlining could be yours, too.

Edit, edit, edit. Supreme Court Justice Louis Brandeis said, “There is no great writing, only great rewriting.” He meant we’ve all got to edit. As I mentioned, legal writing requires a lot of effort just to get the content right. You’ll have to master new vocabulary—lots of it, new forms of analysis and argument, and new information. All that effort will inhibit your ability to write flawless prose. It happens to my students every year. “Professor, I’m embarrassed. You found mistakes in my writing when I knew better. I don’t understand. I normally don’t make that many mistakes.” It’s normal. So outline and then get a first draft done early. Then edit ruthlessly, multiple times. Read it out loud. Do at least one edit on paper. Put it aside for a day if you can and then edit again. Editing can take your writing from average to good and from good to great.

Read the comments. When your professor returns your papers, read the feedback. I’ll admit to being frustrated after putting hours into reading and commenting on student papers when I later realize, through a conference or a rewrite, that the student didn’t read my comments. Or didn’t read all of them. Or didn’t understand some of them but didn’t ask. Hey. That’s what I’m here for. Read the comments—or listen to my feedback in conference—and if you don’t understand, ask.

Persevere. Legal writing is new, complex, and demanding. It will take your best effort, so stick with it. You can do this.

This post also appears on Legal Writing Matters.

Tips for Concision 11: Assess passive voice.

The passive voice always takes more words than the same idea in the active voice:

The motion was written by Carl (6 words) becomes Carl wrote the motion (4 words).

In the passive-voice sentence, I used an object (motion) as the subject of the sentence, where it’s receiving an action rather than doing an action. I moved the actor, the doer of the action, (Carl) to a prepositional phrase at the end. That’s standard with passive-voice sentences:

The fee will be paid by Lessor.

Of course, we can write shorter passive-voice sentences if we leave the actor out entirely:

The motion was written.
The fee will be paid.

And yes, there are times in legal writing when we want to leave the actor out of the sentence. Here are three:

  1. The actor is unknown or irrelevant: The police were notified (we don’t know or care by whom).
  2. Your focus is on the object: Treyco’s account was frozen, not Anderson’s.
  3. You seek to avoid the appearance of responsibility: All the claim files had been lost.

So the advice is not to remove all passive voice but to assess each use. As you edit, ask yourself: Do I need the passive voice here? If not, revising to the active voice promotes concision. If the passive voice wasn’t actually called for in the previous examples, and we wanted the actor in the sentence, here’s how we could edit for concision:

  1. The police were notified by Sampson becomes Sampson notified the police.
  2. Treyco’s account, not Anderson’s, was frozen by the bank becomes The bank froze Treyco’s account, not Anderson’s.
  3. All the claim files had been lost by Southwest Insurance becomes Southwest Insurance had lost all the claim files.

 

Tips for beating procrastination

We all procrastinate, right? I was going to post this yesterday.

But procrastination is a serious problem for some legal writers, and I’ve just finished a fascinating article that educated me about the subject. David A. Rasch & Mehan Rasch, Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors, 43 N.M.L. Rev. 193 (2013). It’s a thorough treatment and showed me not only that some lawyers face career-threatening procrastination problems but that my my own problems aren’t actually that bad. If yours are, I recommend the full article; here are a few key points.

Procrastination is like many other serious problems—it has a cycle. I’ve captured the key components of that cycle here:

See 43 N.M.L. Rev. at 206.

To break out of this cycle, try these tips from the authors:

-Study your own avoidance techniques. See id. at 225. Figure out what you’re doing, and not doing, to sabotage your own ability to start and finish writing projects. In other words, identify the underlying problems.

-Be deliberate in setting times and places where you will write. See id. at 227. Make a plan. Arrange times and places where distractions are minimal.

-Schedule a regular time to write. See id. at 228. This is nearly universal advice for anyone who writes and wants to be productive. Set aside 30 minutes, 60 minutes, or more at the same time each day—or on as many days as you can—and write.

-Break up big projects into manageable chunks. See id. at 229. Writing a book seemed overwhelming to me, so I started with a chapter. The same idea can work for a memo, motion, brief, report, or any other legal document. Write one part, then another, and so on.

-Reward yourself when you’ve completed one of these other tips. See id. at 230.

-If procrastination is a big enough problem, seek professional help. See id. at 231 n. 94.