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.

Justice Gorsuch’s first opinion shows his style

If you search “Neil Gorsuch writing,” you’ll find a number of sources describing new Supreme Court Justice Neil Gorsuch as a strong writer, a writer with flair, a writer with style. Justice Gorsuch has now written his first opinion for the Supreme Court, in this case: Henson v. Santander Consumer USA, Inc.  After reading it carefully and using some MS Word tools to assess it, I offer a few observations about Justice Gorsuch’s writing style.

Stripped of extraneous text and citations, the opinion has about 3000 words and 120 sentences, for an average of 25 words per sentence. That’s a good and readable average for legal writing, as I’ve written here before. The Flesch Reading Ease score is 44. That’s excellent because Supreme Court opinions average around 31.1 (The higher the number, the more readable the text.) And the Flesch-Kincaid Grade Level is 13, meaning a first-year college student should be able to understand the text. That’s pretty good too because Supreme Court opinions average about 14.5.2 Granted, the subject matter of the opinion—who’s a debt collector under the Fair Debt Collection Practices Act—wasn’t complex, and these statistical measures aren’t terribly meaningful, but they at least suggest that Justice Gorsuch tries to write readably.

Two other choices also convey the impression of a thoughtful writer who tries to write readably: Of his 120 sentences, he began 20 with a coordinating conjunction: and, or, for, but, yet, so. That’s a technique of an informal, readable style. So is using contractions, and Gorsuch used 17.

Justice Gorsuch has a few other writing preferences I find interesting.

He rarely uses traditional transition words (conjunctive adverbs) like however, moreover, furthermore, therefore, nevertheless, additionally, and so on. In fact, other than two uses of however, there are none.

Instead, he uses coordinating conjunctions, as mentioned, but he also uses phrases rather than single words, like these, all of which appear at the beginning of sentences:

  • Before attending to that job, though,
  • To the contrary,
  • By this point
  • Given that,
  • After all,
  • After all and again,
  • In the end,

But just as many of his transitions and cues appear mid-sentence, rather than at the beginning:

  • These results follow, the parties tell us, because . . .
  • Petitioners did not, however, raise . . .
  • In another subsection, too, Congress . . .
  • You might, for example, take . . .
  • This exclusion, petitioners now suggest, implies . . .
  • Legislation is, after all, the . . .

More thoughts to come . . .

_____

1. Lance N. Long, William F. Christensen, When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court, 91 Or. L. Rev. 933, 950 (2013)

2. See id. at 949.

Collective Nouns: Singular or Plural?

A collective noun refers to a group of people or things. Group, for example, is a collective noun. Legal writers often have to deal with collective nouns, and here are some of the most common: board, council, court, faculty, government, jury, majority, panel, and staff. When using collective nouns, writers occasionally face questions of subject-verb agreement and pronoun agreement. This post addresses both.

Subject-verb agreement

The key question is whether to treat collective nouns as singular or plural. Should we write the jury is or the jury are? Although a jury, like all collective nouns, is a group of individuals, the better practice is to treat collective nouns as singular and to write the jury is, as well as the council decides, the panel hears, and so on.

But the experts agree that it’s not always that simple. According to Bryan Garner, in the United States, we usually treat collective nouns as a singular unit and use the singular verb. “But if the emphasis is on the individuals in the group, the plural verb form is best.”1 The editors of Merriam-Webster’s English Usage Dictionary agree: “[W]hen the group is considered as a unit, the singular verb is used; when it is thought of as a collection of individuals, the plural verb is used.”2

By the way, British English is different, and I won’t address it here except to say that when I watch a football match (soccer game) with British commentators, it’s always jarring to hear them say, “Chelsea’s team are very talented.”

So in the Unites States, if you’re writing about faculty, you might write this:

a. The faculty [as a singular entity] gratefully acknowledges the assistance of volunteer judges.

But this:

b. The faculty [individually] are of different minds on the subject of pass-fail courses.

Another example:

c. The consultant will study how staff [as a singular entity] in rural hospitals gathers and evaluates the performance of doctors with clinical privileges.

But then this:

d. The staff in rural hospitals [individually] create performance-assessment reports.

As you can see, it can be tricky to decide if you’re thinking of a collective noun singularly or individually, and even more tricky to decide how your reader will perceive it. That’s why the safest practice is to treat collective nouns as singular entities that take singular verbs and to do so consistently within any one document.

A frequent and widely recommended work-around is to use “members” or “members of,” which clarifies the proper verb. So the jury was seated in the hallway becomes the members of the jury were seated in the hallway. And the board meets on the first Thursday becomes the board members meet on the first Thursday. This work-around is useful even if it causes a small loss of concision.

Pronoun agreement

If collective nouns are generally singular, they should take the pronouns it and its, not they, them, or their.

Wrong: The council needed to review the transcript before they could vote.
Right: The council needed to review the transcript before it could vote.

Treating a court as plural is a fairly common error among novice legal writers:

Wrong: The court must first determine whether they have jurisdiction.
Right: The court must first determine whether it has jurisdiction.

This error might arise from the perception that intermediate appellate courts often hear cases in panels of three and that highest courts often hear cases as a body of nine. Yet the court is a singular entity, no matter how many judges make it up. If the writer is thinking of the judges individually, it would be better to write this: The judges must first determine if they have jurisdiction.

Collective nouns are generally singular and take singular verbs and pronouns. If you think you have an exception, go ahead, but use your best editorial judgment and get a second opinion.

[1] Bryan A. Garner, Garner’s Dictionary of Legal Usage 172 (3d ed. 2011).

[2] Merriam-Webster’s Dictionary of English Usage 257 (1994).

Hyphenating Pre-fixes

Should we write pre-trial or pretrial? Non-statutory or nonstatutory? Co-sponsor or cosponsor?

As legal writers, we often have to decide whether to use a hyphen for a prefix. By the way, no hyphen in prefix, despite the hyphen in the title; I was just being clever. In this post I’ll discuss the default rule for hyphenating prefixes as well as the exceptions. (FYI: This blog breaks words at the right margin and inserts hyphens I can’t control. Sorry.)

The default rule is to omit most hyphens: pretrial, nonstatutory, cosponsor. According to Joan Magat in The Lawyer’s Editing Manual, the same rule applies to multiracial, nongovernmental, semiliterate, and underutilize. Even when the result is a doubled letter, omitting the hyphen is generally correct, according to Bryan Garner’s Redbook. So interrelate, misspell, overrate, posttrial, preempt, and reelect. Omitting the hyphen can produce words your spell-checker doesn’t recognize, but “they are nonetheless correct,” according to June Casagrande in The Best Punctuation Book, Period.

Now the exceptions.

Certain prefixes always take a hyphen, and Magat and Garner agree on four that require a hyphen in legal writing: all-, ex-, quasi-, and self-. So all-encompassing, all-knowing, ex-convict, ex-president, quasi-contract, quasi-public, self-assessment, and self-serving.

When the prefix precedes a capital letter or a numeral, use a hyphen. Casagrande, Garner, and Magat agree on this: non-American, anti-Semitic, post-1986, and pre-9/11.

Bring in a hyphen when omitting it could create a miscue, an ambiguity, or confusion—because the unhyphenated word looks like another word:

  • Judge Kean spent most of her pre-judicial career at Lowery & Townes.
  • Forbes rejected the Petitioner’s request to re-sign the contract.
  • The incident resulted from an unexpected re-formation of river ice.
  • Andrick’s video was meant to re-create the events at issue.

The experts also recommend a hyphen when omitting it could create an awkward or hard-to-pronounce compound. Here you must exercise editorial judgment; as you’ll see, the experts’ examples aren’t always consistent with other guidance. Here are the examples the experts say should be hyphenated:

  • Casagrande: anti-inclusive, intra-arterial, ultra-apathetic
  • Garner: anti-intellectual, post-sentencing, pro-abstinence
  • Magat: co-opt, co-worker, non-odious

Thus, we’ve arrived at our guidelines for hyphenating prefixes.

A no-hyphen approach is preferred, with three exceptions: (1) with all-, ex-, quasi-, and self; (2) before numerals and capital letters; and (3) to avoid awkwardness—exercising your best editorial judgment.

For detailed guidance, see The Chicago Manual of Style § 7.79, which is followed in § 7.85 by a 9-page table table with rules for hyphenating specific prefixes and words. Magat’s book, The Lawyer’s Editing Manual, also contains a list of prefixes that are generally unhyphenated, with exceptions.