Tips for Concision 9: Make independent clauses participial phrases

You can improve concision by turning independent clauses into participial phrases.

First, let’s define terms. An independent clause has a subject and a verb and could be a complete sentence by itself. A participial phrase begins with a participle (an –ing verb) and modifies something; participial phrases typically serve as adjectives. Because it’s a phrase, it doesn’t have a subject.

Turning independent clauses into participial phrases means making two sentences into one, but it’s a particular way of doing it. Suppose we have these two sentences:

  • Nunez and Hill had worked at the store together for four years. They had formed a strong friendship.

You can be more concise by converting the second sentence into a participial phrase. Then you can embed it inside the first sentence, setting it off with commas, like this:

  • Nunez and Hill, having worked at the store together for four years, had formed a strong friendship.

Or use it to begin the sentence, like this:

  • Having worked at the store together for four years, Nunez and Hill had formed a strong friendship.

The original is 18 words, and the revisions are both 17. Granted that one word is a modest gain in concision, that is often how concision works: rather than one big edit that saves many words, you make many small edits that add up.

More getting the words right

Could you do better than these lawyers did? Here are four more confused and misused words, along with explanations. For each, the incorrect example is from a real legal document (names have been changed).

just deserts / just desserts
Putting the defendant to death to avenge two killings that he did not commit and had no intention of committing does not contribute to the retributive end of ensuring that the criminal gets his just desserts.

This error might be simply a spelling mistake or a typographical error, but this incorrect usage is fairly common. The correct phrase for getting what you rightly deserve is just deserts with one s and has nothing to do with a post-meal treat. The word desert here is a little-used noun form of deserve.

prescribe / proscribe
Of the total offering proceeds deposited into the Escrow Account, 10% may be released to the Company prior to an offering in which investors reconfirm their investment in accordance with procedures proscribed by Rule 419.

The right word here is the past tense of prescribe, which means to require or authoritatively direct. Proscribe means to prohibit. A procedure could be proscribed by rule or prescribed by rule, but the meanings are distinct.

step foot / set foot
Most jurors will have seen PowerPoint presentations before they step foot in the courtroom.

The proper phrase here is set foot. Granted, the phrase step foot has some common-sense appeal: we takes steps with our feet. But do you step your feet? No. You take steps, and what you’re doing when you take steps is picking your foot up and setting your foot down or in.
That’s my appeal to logic. Here’s my appeal to authority—one of several I found. “The traditional expression is not step foot but set foot.” Paul Brians, Common Errors in English Usage 218 (2d ed. 2009).

tack / tact
The plaintiff believes Porterfield took the wrong tact by refusing to settle.

The correct word here is tack. Tact means sensitivity or skill in dealing with delicate situations. The correct word, tack, means a course or a change in course and is a sailing term, used here metaphorically.

Getting the words right

Legal writing requires precision, and precision requires the right word. Correct word use or “usage,” aids clarity and enhances credibility. With those goals in mind, I offer these confused and misused words, along with explanations. For each, I present an example of incorrect usage from a real legal document (names have been changed).

compliment / complement
The firm considers this team approach a benefit to the client as Jacobson and Gonzalez compliment each other, constantly reviewing and discussing issues.

Although it’s possible that Jacobson and Gonzalez praise (compliment) each other, the word here should be complement, meaning to complete or to go together well.

discreet / discrete
This mandamus proceeding presents a chance for the court to hold that a party cannot avoid the effect of Rule 292 by seeking separate trials of discreet issues that constitute a single cause of action.

Discreet means tactful and circumspect. The correct word here is discrete, meaning individually distinct. These two words can be difficult to keep straight, so to help me remember them, I use this memory aid: In discrete, the two e’s are separated by the t. They’re distinct.

historic / historical
These costs will be subject to reconciliation as reconcilable fuel costs on an historic basis.

The word historic means famous and significant: Passage of the Civil Rights Act was a historic event. The proper word here is historical, which means relating to history or occurring in the past.

But what’s the proper article? Should we use an historical or a historical? The best current guidance is that historical and other words beginning with h, like hereditary and humble, take the article an only if you do not aspirate the h. In other words, use an only if you pronounce the words as if there were no h: istorical, ereditary, umble. And the best current guidance on that is to aspirate the h. So write a historical basis, a hereditary trait, a humble person.

More next week.


Word limits: better than page limits?

Last week, federal district judge Steven Merryday admonished defense counsel for manipulating the standard letter spacing in their document so they could squeeze in more words but stay within the page limit. Highland Holdings, Inc. v. Mid-Continent Cas. Co., No. 8:14-cv-1334-t-23TBM (M.D. Fla. June 23, 2016). An excerpt is pasted below, along with a link to the full document.

I think the court should switch to a word limit. It might not solve all problems, but it removes the incentive for authors to use these tricks:

  • manipulate line-spacing (use 1.9 line-spacing instead of true double-spacing, for example)
  • manipulate font size (use 11.5-point font instead of 12, for example)
  • manipulate margins (use 0.9-inch margins instead of 1-inch margins, for example)
  • pick smaller fonts (use Garamond instead of Times New Roman, for example)

and a trick I’d never seen until now

  • manipulate the letter spacing

I switched to a word count on student papers many years ago and am glad I did.


Mid-Continent’s response (Doc. 50) to Highland Holdings’ motion for summary judgment is disguised as a paper that conforms both to Local Rule 1.05(a), which requires each “paper[] tendered by counsel for filing [to] be typewritten, double-spaced, [and] in at least twelve-point type,” and to Local Rule 3.01(b), which limits the length of a response to “not more than twenty (20) pages.” Although neither rule explicitly proscribes manipulative letterspacing,[1] the Local Rules assume that counsel engages in no manipulation to evade the effect of the rules and assume counsel’s use of the standard space between consecutive letters. Quite transparently, Mid-Continent’s response manipulates the space between consecutive characters in the response and adds approximately two words to each line. Tactics such as Mid-Continent’s letterspacing contribute to a burgeoning set of Local Rules, a phenomenon caused not by persnickety judges but by parties’ relentless efforts to gain an advantage by subverting a set of rules designed to ensure parity. Counsel is admonished; an attempt to subvert the Local Rules exposes the offending counsel to sanction.

[1] “Letterspacing (also known as character spacing or tracking) is the adjustment of the horizontal white space between the letters in a block of text.” Matthew Butterick, Typography for Lawyers 92 (2d ed. 2015).

Full text of the order is here.

How do lawyers do at giving assignments?

I sent 22 lawyers this one-question survey, asking them to check one.

__ Most senior attorneys are good at giving research-and-writing assignments and instructions.
__ Most senior attorneys are average at giving research-and-writing assignments and instructions.
__ Most senior attorneys are poor at giving research-and-writing assignments and instructions.

I was expecting a lot of “poor” responses, but I suppose I should have been able to predict the results, given that I’m a teacher who grades a course on a curve:

  • Good = 7
  • Average = 9
  • Poor = 6

That’s a pretty decent bell curve. Here are two interesting comments from my respondents:

“I think senior attorneys struggle to understand and acknowledge all the information and background they retain and know but don’t always explain to a newer attorney who might need that information and background to effectively perform the  assignment.”

Well said. This is the curse of knowledge, the frustratingly common phenomenon of being unable to recognize that others don’t know what you know.

“It depends on the cut-off between senior attorney and junior attorney. I would say folks in their first 3-5 years are good, folks who’ve practiced for 10 or more are confusing or poor, and folks in between are average.”

Makes sense, right? The farther you get from the novice level, the harder it is to communicate at the novice level.