Category Archives: Grammar and Punctuation

Tips for Concision: 1

Don’t fear possessives.

Why do we write this way?

  • the vehicle of the defendant
  • the property of the seller
  • the intent of the testator

It’s probably just habit or imitating the sound of legal writing in our heads. But those five-word phrases could be shortened to three:

  • the defendant’s car
  • the seller’s property
  • the testator’s intent

Are some legal writers avoiding possessives out of a fear of making an apostrophe mistake? Or out of a sense that possessives are informal (like contractions, which also use apostrophes)? Probably not, but let’s be clear: Possessive forms are not informal. Use them to improve concision.

*A few legal writers were taught that inanimate things cannot possess—that it’s wrong to write the book’s title, the nation’s capital, or the chair’s leg. Instead, we must write the title of the book, the capital of the nation, and the leg of the chair. If it sounds a bit odd to you, you’re right. There’s no such rule, and those who promoted this idea were misconstruing the grammatical term “possessive.” In fact, a better term for “possessive” is “genitive case,” which carries no connotation of ownership. See Merriam Webster’s Dictionary of English Usage 475 (1994).

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Manage your sentence length

What’s a good average sentence length for legal writing?

I once asked a group of lawyers at a CLE seminar that question. “Thirteen words,” one lawyer volunteered. “Seven,” said another. Wow. Writing about legal matters with an average of seven words per sentence isn’t realistic, is it? That means for every sentence of ten words, you’ve got to write one of four words to bring the average to seven. That would be tough.

But the instinct is right. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be. So what’s a more realistic goal? The experts say between 20 and 25 words:

  • below 25—Wydick in Plain English for Lawyers
  • about 22—Enquist & Oates in Just Writing: Grammar, Punctuation, and Style for the Legal Writer
  • about 20—Garner in Legal Writing in Plain English

How do you know your average sentence length?

You can program Microsoft Word to tell you. In Word 2010 and 2013, go to File > Options > Proofing and look for “When correcting spelling and grammar in Word.” Now check the box for “Show readability statistics.”

You’ll also be required to check the box for “Check grammar with spelling.” If you dislike running a grammar-check every time you run a spell-check, go into the grammar settings and uncheck as many boxes as you like. You’re telling Word to stop checking for all those grammar items—it gets most of them wrong anyway. (For more on using grammar checker wisely, see Customize Word’s Grammar Checker from the October 2012 Austin Lawyer.)

With those settings, when you finish a spell-check you’ll see a display that includes the average sentence length. Of course, the tool isn’t perfect. If you have citations or headings in your text, Word will think those are sentences—short sentences—and your average sentence length will be artificially low. To work around this problem, select a paragraph or group of paragraphs without headings or citations and then run the spell-check; do it three times in different places. This will give you a sense of your average sentence length.

If your average sentence length is in the 30s, or even the high 20s, you’re taxing your readers. Do a thorough edit for concision and efficiency. If your average sentence length is in the teens, well done. You’re pleasing your readers. And remember, average sentence length doesn’t mean uniform sentence length. You should vary your sentence length. Write some short sentences and some longer ones.

How long is too long?

We lawyers have a reputation for long sentences. It’s probably not all our fault. After all, the subject matter of most legal writing lends itself to qualifications, modifiers, asides, and lists—so we might be forgiven. Yet I’m sure we can do better. Here’s a suggestion: Decide on a maximum sentence length and promise yourself you’ll cut any sentence that exceeds your maximum. For example, mine is 45. I’ve decided that when a single sentence I’ve written exceeds 45 words, it’s an automatic edit.

Of course, some gifted writers can create long sentences that are pleasant to read; they usually use long but perfectly parallel phrases in a series. Or they use lots of semicolons. It can work in literature and, occasionally, in law. But for most of us doing legal writing, long sentences are hard to read and hard to follow. So avoid over-long sentences.

In managing sentence length and avoiding over-long sentences, it’s not practical to count words while you’re typing. Instead, manage sentence length on the edit. As you read your writing, keep an eye out for any sentence that fills three or more lines of text or any sentence that just makes you tired. Use your cursor to select that sentence, and Word will tell you the word count at the bottom left of your screen. For me, if it’s more than 45, it’s an automatic edit.

So that’s the advice. For readable writing that doesn’t tax your readers, vary your sentence length, seek an average in the low 20s, and cut any sentence of 45 words or more.

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Using Reflexive Pronouns—by Yourself

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Plenty of smart people make mistakes with reflexive pronouns, so it’s worth reviewing their correct use.*

First, let’s list them: The reflexive pronouns are

  • herself
  • himself
  • itself
  • myself
  • oneself
  • ourselves
  • themselves
  • yourself, yourselves

Second, let’s take a little quiz. Which is correct?

1. If you have any questions, please call Alexis or myself.

2. According to the will, the property is to be divided equally between yourself and Mr. Hill.

Well, it was a trick. Neither is correct. Let’s discuss the two rules for reflexive pronouns, and we’ll come back to these two sentences later.

Rule one: Use a reflexive pronoun for the object when the subject and object are the same.
This is simpler than it sounds, and writers rarely, if ever, make mistakes in using reflexive pronouns in this way. For example:

3. Megan accidentally cut herself.

Here the subject, Megan, and the object, herself, are the same person, so the reflexive pronoun is correct. If you wrote Megan accidentally cut her, readers would assume that her was another person, not Megan. One more example:

4. Even though Daniel is an attorney, he should not represent himself.

Here, the subject of the main clause is the pronoun he, and the object is the reflexive pronoun himself, but the two refer to the same person, Daniel.

Rule two: Use a reflexive pronoun if the subject or object is repeated for emphasis.
Here, the reflexive pronoun has an antecedent (earlier reference) in the sentence, and the sentence would be grammatically correct even without the reflexive pronoun. For example:

5. Craig testified that the bag was green, but he had not seen it himself.
6. Veronica decided to draft the interrogatories herself.

In both these examples, the sentences would be correct and would still have the same essential meaning without the reflexive pronouns:

5a. Craig testified that the bag was green, but he had not seen it.
6a. Veronica decided to draft the interrogatories.

But the reflexive pronouns add emphasis; they intensify the meaning. In fact, pronouns used this way are also called intensive pronouns. These pronouns can also intensify by repeating the subject, as in these examples:

7. Mr. Fowler himself must register the name change.
8. The senator herself wrote me a letter.

Again, these sentences would be fine without the reflexive pronouns:

7a. Mr. Fowler must register the name change.
8a. The senator wrote me a letter.

But the emphasis would be lost.

Now let’s return to our quiz. In both sentences, the writer (or speaker) isn’t following either of the rules just described. Rather, the writer seems to be reaching for a formal tone or a serious-sounding word:

1. If you have any questions, please call Alexis or myself.
2. According to the will, the property is to be divided equally between yourself and Mr. Hill.

Grammatically speaking, the more formal, serious-sounding word is wrong, and these sentences should use me and you:

1a. If you have any questions, please call Alexis or me.
2a. According to the will, the property is to be divided equally between you and Mr. Hill.

With example 1a, it’s even possible that some writers are engaging in what’s called “hypercorrection.” Gun-shy from years of being corrected for saying things like You and me should go to Jed’s house or Rosanna and me are planning to visit Spain, these speakers practice me avoidance. Here’s the apparent thought process: Whenever I say “Rosanna and me,” I get corrected, so I’d better do something else. I’ll try “Rosanna and myself.” (In the hypercorrected sentences involving Jed and Rosanna, the correct pronoun is I.)

Hypercorrection means “trying so hard to be right that you’re wrong.” Don’t hypercorrect yourself. (By the way, that sentence has an implied subject of you, so it’s correctly using the reflexive pronoun.) You yourself can use reflexive pronouns correctly.

*I am indebted to Susie Salmon for the idea to write about reflexive pronouns: Susie Salmon, Me, Myself, and I: How to Talk about Yourself, Arizona Attorney 14 (Oct. 2014).

Parallelism Basics

When you write a list or series, the elements should be in parallel form. If they’re not, you have “faulty parallelism.” For proper parallelism, here are the rules:

  1. Each element in the list or series flows naturally from the lead-in, and
  2. Each element in the list or series begins with the same part of speech (verb, preposition, noun, and so on).

Here’s an example:

a. A lawyer must disclose adverse authority that is known to him, arises from the controlling jurisdiction, and that was not disclosed by opposing counsel.

If we tabulate (put each element on its own line), we can easily identify faulty parallelism:

b. A lawyer must disclose adverse authority that
-is known to him,
-arises from the controlling jurisdiction, and
-that was not disclosed by opposing counsel.

Example b has flaws in both requirements. The third element doesn’t follow from the lead-in: that . . . is, that . . . arises, that . . . that. And the first words of each element aren’t the same part of speech: is and arises are verbs; that is a pronoun.

Consider two ways to fix it. First, you could repeat the lead-in word (that) each time:

c. A lawyer must disclose adverse authority that is known to him, that arises from the controlling jurisdiction, and that was not disclosed by opposing counsel.

It works, but it’s a little heavy on the use of that. Second, you could revise so each element begins with a verb:

d. A lawyer must disclose adverse authority that is known to him, arises from the controlling jurisdiction, and was not disclosed by opposing counsel.

Now the first word of each element fits the lead-in and all are the same part of speech. We have parallelism.

Whenever you write a list or series—typically with three or more elements—practice parallelism. It’s consistent and logical, of course, but it also reduces miscues and eases reading by creating balance and consistency. Opportunities for pleasing parallel structure are common in legal writing and can take many forms:

  1. A simple list: We can send the client an e-mail, a letter, or a memo.
  2. A series of phrases: Writers create emphasis by repetition, produce clarity with simple words, and enhance persuasion through clear organization.
  3. A series of clauses: The trial judge granted summary judgment, the appellate court affirmed it, and the Supreme Court reversed it.
  4. A numbered list, like the one you just read. (Note that each numbered item began the same way.)

Another form of basic parallelism that recurs in legal writing is the use of correlative expressions, also called correlative conjunctions. The most common are both/and, not only/but also, either/or, and neither/nor. In these pairs, A and B should be the same part of speech: both A and B, not only A but also B, either A or B, and neither A nor B. For example:

e. Many lawyers are not only smart but also think creatively.
f. Many lawyers are not only smart but also creative.

Example e isn’t parallel: not only smart (adjective) but also think (verb), and the faulty parallelism makes it clumsy. But example f is parallel, making it shorter and giving it force. Here’s one more example:

g. She testified that she made neither a withdrawal nor did she make a payment.
h. She testified that she made neither a withdrawal nor a payment.

Example g is faulty because what follows neither is an article and noun (a withdrawal) but what follows nor is a verb (did). Example h is parallel, producing a shorter and more forceful sentence.

Short and forceful, balanced and consistent—these are the rewards of parallel structure.

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Semicolons: Not so Useless

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“How useless is the semicolon?”

A lawyer once asked me this question (emphasis in the original) and proceeded to offer three points in support. First, he said, a period can fulfill some of the semicolon’s functions, and second, a comma can fulfill the rest. Third, people abuse and confuse semicolons enough that we’d be better off without them. Well, I had to concede some of his points. But I was determined not to let “Mr. Useless,” as I’ll call him, get the better of me. No. I believe lawyers, as professional writers, have legitimate uses for the semicolon. Here are four.

1. Semicolons can separate independent clauses.
An independent clause has a subject and a verb and could be a sentence by itself. We can separate independent clauses with a period—as I had to concede to Mr. Useless.

We do not object to the amount of the fees. We ask that the amount not be disclosed to the public.

But a period between independent clauses says, “Full stop. New idea.” A semicolon between independent clauses says, “Pause; related idea.”

We do not object to the amount of the fees; we ask that the amount not be disclosed to the public.

So, Mr. Useless, the semicolon gives the professional writer another option—another tool for connecting ideas.

2. Semicolons separate phrases in a series when one or more of the phrases has internal commas.
This is a useful function more lawyers should apply. When you have three or more phrases in a series, you normally separate them with commas, which tells readers where each phrase ends. But when one of the phrases has commas within it, readers can get lost. In those cases, use the semicolon as a “super comma.” A basic example:

I have a sister in Princeton, New Jersey; a sister in Philadelphia, Pennsylvania; and a brother in Great Falls, Montana.

Contract drafters should get to know this semicolon. The modifiers and qualifications that appear in contract language sometimes result in sentences like this:

All other details as to format, title, time, and manner of production, of price, publication and advertisement, and the number of, and distribution of, editorial review and free copies will be left to the discretion of the Publisher.

Got that? It’s better with semicolons acting like super commas:

All other details as to format, title, time, and manner of production; price, publication, and advertisement; and the number and distribution of editorial-review and free copies will be left to the Publisher’s discretion.

And that, Mr. Useless, is something a period or comma can’t do.

3. Semicolons separate the items in a numbered list.
This isn’t so much a rule as a convention in legal writing. When you write a simple, textual list or series, you separate the items with commas—as I again had to concede to Mr. Useless. For example:

When arguing a case to the jury, remember to maintain regular eye contact, keep your argument short, and close with a challenge.

But in legal writing, once you number the items, semicolons become conventional, even though commas would also be correct:

When arguing a case to the jury, remember three things: (1) maintain regular eye contact; (2) keep your argument short; and (3) close with a challenge.

Semicolons are even more conventional when you tabulate the numbered list.

When arguing a case to the jury, remember three things:
(1) maintain regular eye contact;
(2) keep your argument short; and
(3) close with a challenge.

Why quarrel with convention, Mr. U?

4. Semicolons separate the authorities in a string citation.
Simple enough, and it’s one we already knew: Moran v. Adler, 570 S.W.2d 883, 888 (Tex. 1978); Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963).

And you can’t use periods or commas for that, can you, Mr. Useless?

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