The wisdom of a fortune cookie–UPDATE


UPDATE: The advice on the fortune is from William Zinsser, a noted writing expert and author of a really good book called On Writing Well, which I recommend. I’ve also learned that many others have received this fortune as far back as 2009. Wow.

After a lovely meal of Spicy Basil Fried Rice, I opened my fortune cookie and found this:


What a surprise. It’s the most unusual but most appropriate fortune I’ve ever seen.

Headings, part 1: Kinds, Typefaces, and Placement


Nearly every legal document can benefit from clear, consistent headings. The guidelines here are particularly useful for memos, motions, and briefs. In part 1, I describe two kinds of headings, give typeface advice, and offer suggestions for placement and alignment. I’ll discuss two kinds of headings: topic headings and explanatory headings.

Topic Headings
I use the name topic heading for single-word or short-phrase headings that identify topics, like Argument, Discussion, and Statement of Facts. Because a topic heading isn’t a complete sentence, it doesn’t take a period, and you typically capitalize each main word (Initial Caps). I use the mnemonic C-A-P to remember to capitalize everything but conjunctions, articles, and prepositions. The heading above this paragraph is a topic heading.

Topic headings should stand out from the body text, and here are three good options. (1) Use boldface. Yes, ALL-CAPITALS and underlining are common for topic headings, but if you follow modern typographic principles, you’ll avoid them: they can impede reading and are vestiges of the typewriter. (2) Make topic headings slightly larger than the body text by 1 or 2 points, then add boldface. (3) Use a contrasting font (my preference).

A contrasting font? Yes. If the body text is in a serifed font like Cambria, Garamond, or Century Schoolbook—and it probably should be—then topic headings in a sans-serif font like Calibri, Tahoma, or Verdana will really stand out.

Topic headings designate the major sections of a legal document. For example, in a motion for summary judgment, the topic headings might be Introduction, Statement of Facts, Motion Standard, Argument, and Relief Sought. Because of their nature and the way they’re displayed, they don’t require numbering.

Topic headings are often centered, but that’s not a rule; it’s merely a common convention. Knowing, as we do, that many readers will read memos, motions, and briefs on a screen, and knowing that screen readers have a top-left viewing preference and skim a lot, it makes sense to put topic headings on the left margin. That’s what I do.

Legal documents often use explanatory (point) headings.
I use the name explanatory heading (and point heading) for the full-sentence headings and sub-headings that break up a discussion or argument. The persuasive point headings in motions and briefs are the most common types of explanatory headings, but lawyers use non-persuasive explanatory headings, too. I used one above this paragraph.

If a heading is a complete sentence, and an explanatory heading generally should be, then it takes a period. If it’s a sentence, use sentence case, capitalizing only the first word. DON’T SHOUT AT THE READER WITH ALL-CAPITALS, and Avoid Using Initial Caps For Explanatory Headings Because It Looks Odd.

The best way to make explanatory headings stand out is to use the same (serifed) font as the body text but to emphasize it with boldface, bold italics, or italics. That gives you three outline levels beneath the topic headings. Generally, place the first-level explanatory heading on the left margin and indent each lower level one more tab length.

As you format explanatory headings, keep these tips in mind: (1) Avoid over-indenting. If you indent more than three tab lengths, you spoil the left-alignment screen readers and skimmers prefer. (2) Keep explanatory headings to three outline levels if possible. It simplifies things for the reader and helps prevent over-indenting. (3) Use indentation, not mere tabbing, so subsequent lines of text align with the first. Look at these examples.


Yours should look like number 1.


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Tips for Concision: 5. Eliminate excessive prepositions

Eliminate excessive prepositions.

One way to lengthen a sentence is to stack up prepositional phrases, especially using of. With too many prepositions, writing lacks flow. It’s also longer. Count the prepositions in this sentence—they’re conveniently highlighted:

There is no current estimate of the number of boxes of records in the possession of the school.

The sentence has five prepositions among its 18 words. That’s not an error, but it’s choppy. So when you edit, tune your ear for excessive prepositions and cut the ones you can. In this example, we can cut at least two and possibly three, reducing sentence length from 18 to 15 or even 14:

There is no current estimate of the number of boxes of records the school possesses.

We have no current estimate of how many boxes of records the school possesses.

Eliminating excessive prepositions is a well recommended technique for improving prose:

  • “Multiple prepositional phrases will affect the vigor of your writing.” Megan McAlpin, Beyond the First Draft 55 (2014).
  • “Reducing the ofs by 50% or so can greatly improve briskness and readability.” Bryan A. Garner, Legal Writing in Plain English 51 (2d ed. 2013).
  • “Look closely at any sentence that depends heavily on prepositions, and if you count more than three phrases in a row, consider revising.” Claire Kehrwald Cook, Line by Line 8 (1985).

Here’s another example:

A knowledge of correct trial procedures is the duty of all of the members of the bar of this state.

This sentence has five prepositional phrases in 21 words. And you’ll agree, I hope, that it’s an awkward little thing. But now we have better terminology; we don’t just say it’s awkward, we say it has excessive prepositions. When we edit, we focus on removing them:

All state-bar members must know correct trial procedure.

That’s concision.


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Tips for Concision: 4. Cut throat-clearing phrases


Cut throat-clearing phrases.

These are flabby sentence openers that try to manufacture emphasis but just postpone getting to the point. They look this this:

  • It is clear that . . . .
  • It is important to point out that . . . .
  • It would appear to be the case that . . . .
  • A key aspect of this case, which must not be overlooked, is . . . .
  • The Defendant would respectfully draw to the court’s attention that . . . .

And no, I didn’t make this up. Many writing guides advise against “throat-clearers.” Here’s a website.

Why avoid them? They’re “needless buildups” (Garner, The Elements of Legal Style); “merely space-fillers” (LeClercq, Legal Writing Style); and “convey little if any information” (Enquist & Oates, Just Writing).

Your writing will be more concise, and stronger, without them.


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Tips for Concision: 3. Diminish sesquipedalian vocabulary


Reduce big words

Sesquipedalian (sesqui + ped) means a foot and a half long, and it’s exactly the kind of word to avoid. Unless you need a term of art or a legal word, your writing will be more concise and more readable if you use an everyday word instead of a fancy one.

So change ascertain to learn, commence to start, and request to ask.

For more ideas, check out Joseph Kimble’s list (available online) in the Michigan Bar Journal: Joseph Kimble, Plain Words, 80 Mich. B.J. 72 (Aug. 2001).

As you edit, root out words that are ostentatious (fancy), abstruse (hard), and infrequent (rare). Don’t write

She indicated she had previously encountered this conundrum

when you could write

She said she had faced this problem before.

But wait. Lawyers are smart and are used to reading and using sesquipedalian vocabulary. So if we’re capable of handling big words, why should we use small ones? Why should we dumb down our writing?

Let me be clear: to write concisely you don’t need to limit your own vocabulary. In fact, the larger your vocabulary, the better a writer you’re likely to be. As Rudolf Flesch said, it’s not about knowing big words; it’s about using them:

So if you have a big vocabulary and know a lot of rare and fancy words, that’s fine. Be proud of your knowledge. It’s important in reading and in learning. But when it comes to using your vocabulary, don’t throw those big words around where they don’t belong. . . . It’s a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.

Rudolf Flesch, How to Write Better 25, 35 (1951).

More to come.