Saxon-Romance Persuasion

This post discusses two techniques for creating memorable, persuasive prose, which I discovered in Ward Farnsworth’s forthcoming book, Classical English Style. By the way, how’re you doing at spotting Saxon and Romance words? Here’s Quiz 3: name the Saxon alternative for each Romance verb: cogitate, emancipate, imbibe, inundate, masticate (answers at the end).

In persuasive writing, some judges prefer Saxon words:

  • “[The best advocates] will master the short Saxon word that pierces the mind like a spear . . . .” Hon. Robert H. Jackson, U.S. Supreme Court.1

Another example:

  • “A healthy respect for the robust Anglo-Saxon appeals more than does the Latin . . . .” Hon. Wiley B. Rutledge, U.S. Supreme Court.2

We can take advantage of this preference with two persuasive-writing techniques that combine Saxon words with Romance words—relying on differences in tone, formality, and force. The two techniques are the Saxon Restatement and the Saxon Finish.

The Saxon Restatement. With this technique, you state a proposition using primarily Romance words and then restate it using primarily Saxon words (or vice versa). Abraham Lincoln did it in his House Divided speech:

  • “I do not expect the Union to be dissolved; I do not expect the house to fall.”3

Lincoln essentially says the same thing twice: with Romance words (union, dissolve) and then Saxon (house, fall). He names lofty concepts and then brings them down to earth, creating a forceful, memorable couplet.

Winston Churchill did something similar in a famous speech:

  • “I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind.”4

Here Churchill reversed the pattern, starting with Saxon (blood, toil, tears, sweat) and reiterating with Romance (ordeal, grievous). The real, physical sacrifices are named and then connected to the abstract concepts.

I’ve created examples for modern legal writing by modifying text from appellate briefs:

  • The jury justifiably relied on the photographic evidence because images are unable to prevaricate; pictures cannot lie.

Here, image, able, and prevaricate are Romance; cannot and lie are Saxon. The lofty legal concepts are made concrete. Another example:

  • Albrecht’s only obligation under the order was to remunerate the seller for the vehicle she purchased—to pay for what she bought.

The Saxon Finish. With this technique, you state a single proposition, but after beginning with Romance words, you finish with Saxon. Oliver Wendell Holmes did it well. Here are two examples from his dissenting opinions—the Saxon Finish is italicized:

  • “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”5
  • “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”6

Holmes builds up to a big idea with Romance words; then he states the idea with Saxon words. The result is a forceful wrap-up.

I’ll give it a try:

  • Petrolco asks this court to affirm the trial court’s interpretation of section 216(b) so that punitive damages are grafted onto the text—an interpretation that produces an entirely different class of remedy from mere legislative silence. Petrolco asks too much.
  • The drug would be located in the deceased’s system only under illicit conditions because having the drug is against the law.

Granted, these techniques are used most often used in speech. Still, you should add them to your toolkit for persuasive legal writing. They constitute sophisticated rhetorical devices—they are tools of plain English.

Quiz answers: cogitate/think, emancipate/free, imbibe/drink, inundate/flood, masticate/chew

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[1] Collected in Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, Mich. B.J. 44–45 (Feb. 2005).
[2] Id.
[3] Quoted in Ward Farnsworth, Classical English Style (forthcoming).
[4] Id.
[5] Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
[6] United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

Saxon & Romance Words, part 2: Contract Drafting

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The last post introduced a way to think about plain words versus fancy ones: sometimes it’s the difference between words of Saxon origin and words of Romance origin. As a refresher, and to set the stage for this post’s focus, try this quiz. For each Saxon-named animal, give the French (Romance) name for the type of meat: chicken, cow, deer, sheep, pig. (Answers at the end of the column.)

Now let’s discuss contracts and other binding legal documents. They often contain Saxon-Romance pairs:

  • agree and covenant
  • cease and desist
  • due and payable
  • hold harmless and indemnify
  • sell and convey
  • will and testament

Why?

During the 1200s, French became the primary language of the law in England. In the 1400s and after, English began to replace French as the language of the upper classes. (History lesson omitted.) Hence the Saxon names for farm animals and the Romance names for their meat when served—as seen in our quiz.

English also began to replace French as the language of the law. Thus, as explained by David Crystal in The Stories of English, legal scribes often had to decide what words to use when “French and English each provide a copious supply of relevant items.”1 Often they didn’t choose—they used both.

As Crystal puts it, “Old English goods and Old French chattels resulted in Middle English legalese, goods and chattels.”2 Sometimes the pairs were synonyms, sometimes they were subtly different, and sometimes they were paired out of “stylistic habit, perhaps fostered by their undoubted rhythmical appeal in oral performance.”3

Many of these doublets persist today, as we saw in the pairs listed above. We also see triplets:

  • give, devise, and bequeath
  • ordered, adjudged, and decreed
  • right, title, and interest

Old legal language isn’t necessarily bad legal language, so how should legal drafters address these doublets, triplets, and longer strings? My advice here relies on my preference for plain, direct words and on the expertise of Kenneth Adams in his Manual of Style for Contract Drafting.4

First, do enough research to decide whether the doublet, triplet, or string contains words that differ in meaning or whether they’re true synonyms. (Sources to consult: Adams’s Manual of Style, Garner’s Dictionary of Legal Usage, and Black’s Law Dictionary.) If they’re not true synonyms, decide which meanings you intend and keep only the words you need.

If you have true synonyms, do your best to pick one word that conveys your intended meaning and delete the others. For example, in most contracts, sell and convey can be shortened to sell. If you intend separate actions—selling the item and then conveying the item to the buyer—then separate provisions requiring the seller to both sell the item and deliver it would be better.

What about the stock judicial phrase ordered, adjudged, and decreed? Certainly it’s harmless as is, but it would also certainly be harmless to shorten it to ordered.

And this monster is still sometimes used with security interests: grant, assign, convey, mortgage, pledge, hypothecate (what?), and transfer. Adams says it can be shortened to grant.5

To those who say that the extra words are harmless, so there’s no reason to excise redundancies, I can say only this: you’re mostly right. But litigation over the Romance-Saxon phrase indemnify and hold harmless gives pause. Some courts say they’re synonyms, while others say they’re not.6 Ultimately, a knowledge of Saxon-Romance pairs might help you streamline and improve your contracts.

(Quiz answers: chicken/poultry, cow/beef, deer/venison, sheep/mutton, pig/pork.)

Wayne Schiess’s past Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One.

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  1. David Crystal, The Stories of English 152 (2004).
  2. Id.
  3. Id.
  4. Kenneth A. Adams, A Manual of Style for Contract Drafting 6-7 (3d ed. 2013).
  5. Id. at 7.
  6. Id. at 292-93.

Saxon & Romance Words

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In reading about writing, I’ve run across the following advice

  • H.W. Fowler: “Prefer the Saxon word to the Romance.”1
  • Strunk & White: “Anglo-Saxon is a livelier tongue than Latin, so use Anglo-Saxon words.”2

But I never paid much attention because I didn’t know what it meant. When I finally learned, from Classical English Style by Ward Farnsworth,3 I saw that the advice could apply to legal writing, too. 

Modern English contains words of many origins, but two key sources are Anglo-Saxon and Latin; many words of Latin origin are also French and are sometimes referred to as words of “Romance” origin. Yes, I’m skipping the history lesson, but some common examples can help make the point. Here are four pairs in which the first is of Anglo-Saxon origin and the second is of Latin/French/Romance origin:

  • break/damage
  • come/arrive
  • make/create
  • need/require

No, they’re not perfect synonyms, but we can immediately make some generalizations: Saxon words tend to be shorter—often single syllable, and harder in sound; they also tend to be concrete rather than abstract, and less formal, too. One way to put it is that Saxon words are plain, and Romance words are fancy, as in these Saxon/Romance noun pairs:

  • belly/abdomen
  • boss/superior
  • job/position
  • wish/desire

Try it. Here are five Saxon verbs—try to think of the Romance synonyms:

  • ask
  • buy
  • eat
  • see
  • talk

(Answers at the end of this post.) 

What can we do with this knowledge? The recommendation is not to replace every Romance word with a Saxon word—the best writing advice is rarely always or never. Instead, generally default to Saxon words but use your editorial judgment, considering audience, tone, legal terms, and subtleties of meaning. Here are some before-and-after examples with comments.

Before: The City Planner agreed that Hamet’s lot was adjacent to the single-family homes.
After: The City Planner agreed that Hamet’s lot was next to the single-family homes.

  • This is a sensible edit that substitutes a shorter Saxon word for a longer Romance word, making the text a bit more readable.

Before: Castillo asserts that a spouse has no constitutional right to the effective assistance of counsel in a divorce suit.
After: Castillo asserts that a spouse has no constitutional right to the effective help of counsel in a divorce suit.

  • Probably not a good edit. “Effective assistance of counsel” is a standard legal phrase. Don’t replace Romance with Saxon when the Romance term is, or is part of, standard legal language.

Before: But a video camera won’t prevaricate.
After: But a video camera won’t lie.

  • This is a solid edit. The example is from an appellate brief, and in that context, if you’re willing to begin a sentence with but and use a contraction, the Saxon lie delivers more force than the Romance prevaricate.

You might reasonably ask why it helps to know that the plain word is Saxon and the fancy word is Romance. Can’t we just use plainer, simpler words when possible? Yes, you can. But I hope this will help raise your writing IQ.

Plus, there’s more to know about Saxon and Romance words in legal writing, and I’ll continue the discussion in the next post. For now, put Saxon/Romance (or just fancy/plain) on your writing radar. Start to notice when you use a fancy Romance word when you could use a plain Saxon one.

Quiz answers: ask/inquire, buy/purchase, see/observe, eat/consume, talk/converse.

Get the book: Legal Writing Nerd: Be One.

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[1] H.W. Fowler, The King’s English 1 (1906).

[2] William Strunk, Jr. and E.B. White, The Elements of Style 77 (4th ed. 2000).

[3] Ward Farnsworth, Classical English Style (forthcoming)

Block that block quotation

Considerations for using block quotations.

A survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons.

Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read.

They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off.

Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations.

First, anything you block-quote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix.

Likewise, if a binding case contains language of more than 50 words that’s directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate. But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation.

Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block.

Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation.

As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1

As a last step, write an inviting, persuasive lead-in to the block. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this blog here.) One colleague suggested that the text after the block quotation might assert the key point, too. Readers who skip the block will still get the point—twice.

Are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

Ultimately, you’re in charge of your block quotations, so use them sparingly but effectively.

Check out Wayne Schiess’s new book: Legal Writing Nerd: Be One.

1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).