Category Archives: Grammar and Punctuation

Developing Editorial Judgment

It’s more than “read a lot” and “have a good ear.”

At a recent CLE talk, I said that implementing a certain technique would require “exercising editorial judgment.” A lawyer asked, “How do you develop editorial judgment?” In this column, I try to answer that question.

Note: This column is about words, sentences, paragraphs, and documents, not about substance and content, which are highly important in legal writing: Should I mention this fact? Should I include this topic [information, explanation, analysis, argument, counter-argument, policy, etc.]? Does my reader need more background—or less? And so on.

When you’re writing or editing a document for yourself or someone else, you end up making countless editorial decisions:

  • Should I use a semicolon or a dash here?
  • Should I use conversely, however, or but?
  • Is this sentence too long? If so, where should I break it?
  • Is this paragraph too long? If so, …
  • Should I use three levels of headings and subheadings—or only two?

And so on. We make most of these decisions instinctively, yet in doing so, we may not realize that we’re relying on editorial judgment: a storehouse of knowledge about the way writing works. Plus, factored into all these judgments are the context, the audience, the constraints, and the goals of the writing. That’s a whole lot of judgment to exercise.

I’ll focus on developing good editorial judgment as to the words, sentences, paragraphs, and documents you write. Here are my five key recommendations:

Look things up.

Whenever you have even a small or innocuous-seeming question or concern about words, syntax, sentences, grammar, punctuation, or style, consult a source. The internet works (I like “Grammar Girl” Mignon Fogarty[1]), but I recommend keeping at hand some good reference manuals—books—including references specific to legal writing. I’ve cited five good ones in the footnote.[2]

Read about writing.

I often see “read good writing” offered as advice for learning to write well. It’s good advice. But the reading most of us do is to learn content or to be entertained. The kind of reading you should do to improve your editorial judgment requires more effort, more focus, more planning. For me, it’s not reference manuals like those I mentioned above, but engaging, well-written books about writing well. These books inform and strengthen your editorial judgment. I’ve listed five in the footnote.[3]

Write a lot.

This idea is built-in for most legal writers. The more writing you do in a professional context, the more experience you gain, and experience contributes to editorial judgment. But if all you do is write a lot, without looking things up and without reading about writing, you tend to rest on plateaus; you write the same way you always have—particularly if you’re operating with harsh deadlines and heavy workloads. So write a lot, but improve and inform your writing judgment by looking things up and reading about writing.

Edit, edit, edit.

Subject every serious writing project to edits aimed at effectively and precisely conveying the content, clearly presenting that content in an organized fashion, and thoroughly improving the text for concision, clarity, and correctness. You could develop editing protocols and practice them consistently. You could create editing checklists and revise them over time. You could work at completing drafts early so you have more time to edit—and more time away from the document, which always improves editing.

Seek critique.

Open yourself up to suggestions, comments, and critiques of your writing offered by those you trust and whose writing you respect. One sure way to stymie your editorial judgment is to write the way you always have without seeking input from others.

Those are my best recommendations. Good luck.



[2] Deborah Bouchoux, Aspen Handbook for Legal Writers; Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer; Bryan A. Garner, Garner’s Dictionary of Legal Usage; Bryan A. Garner, The Redbook: A Manual on Legal Style; Texas Law Review, Manual on Usage & Style.

[3] Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well; Ross Guberman, Point Made; Ross Guberman & Gary Karl, Deal Struck: The World’s Best Drafting Tips; Wayne Schiess, Legal Writing Nerd: Be One; Richard Wydick & Amy Sloan, Plain English for Lawyers.

Great new book

The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing

by Diana Simon

Professor Diana Simon of the University of Arizona James E. Rogers College of Law has written an entertaining and informative guide to grammar and punctuation for legal writing. I’ve read it cover to cover, and I loved it. It’s a reference—but it’s more. It has solid explanations (the why of grammar and punctuation)—but it has more. It recounts the stories—the real cases—that show that grammar and punctuation matter.

  • The claim dismissed because of the passive voice
  • The deportation case that hinged on a semicolon
  • The failure of a complaint because of apostrophe errors

It’s readable, practical, and engaging. I recommend it to legal-writing faculty, practicing lawyers, paralegals, judges, judicial clerks, and anyone who cares about legal writing.

Look for my book review forthcoming in Legal Communication & Rhetoric: JALWD in spring 2023.

The (Not too Serious) Grammar, Punctuation, and Style to Legal Writing is published by Carolina Academic Press.


Saving Commas

Three uses to preserve

I read a lot of legal writing, and I’ve begun to notice a decrease in three particular comma uses. Although I mostly read law-student writing, I’ve noticed these missing commas in some lawyer-written documents as well. (I should mention that I don’t believe that the writing skills of law students and young lawyers are in decline, and I’ll have more to say about that in another column.) In this column, I describe the three comma uses and advocate for saving those three commas.

1. Comma after introductory transition word

In professional writing, we generally place a comma after a sentence-beginning transition word. These words are also call “conjunctive adverbs.” They’re well-known, multi-syllabic transitions, like these: accordingly, additionally, certainly, consequently, conversely, finally, furthermore, however, in addition, incidentally, likewise, meanwhile, moreover, nevertheless, nonetheless, similarly, subsequently, therefore, thus, undoubtedly. Examples:

Wrong: However Rei requests that the fee amount not be disclosed to the public.

  • Right: However, Rei requests that the fee amount not be disclosed to the public.

Wrong: Therefore the court rejected and dismissed all the petitions before it.

  • Right: Therefore, the court rejected and dismissed all the petitions before it.

Wrong: Furthermore the illegal transaction occurred at Anton’s home.

  • Right: Furthermore, the illegal transaction occurred at Anton’s home.

This comma sometimes goes missing. Maybe writers are aiming for speedy reading or better flow and are thinking that a comma will slow things down. (It can be appropriate to omit the comma after an opening thus.) But the decreased use might also be occurring because writers are forgetting the rule. Let’s save this comma.

2. Comma after introductory dependent clause

We should also place a comma after a sentence-beginning dependent clause. As a refresher, a clause is a group of words that has a subject and a verb. For this rule, we’re talking about dependent clauses, also called subordinate clauses: they have a subject and a verb, but they’re not independent clauses—they’re not complete sentences by themselves. Examples:

Wrong: Although both covenants began when the employment began they extended for different time periods.

  • Right: Although both covenants began when the employment began, they extended for different time periods.

Wrong: If the conduct occurred in the scope of representation then the conduct is shielded.

  • Right: If the conduct occurred in the scope of representation, then the conduct is shielded.

Wrong: Unless the court grants the petition for rehearing the original opinion is likely to stand.

  • Right: Unless the court grants the petition for rehearing, the original opinion is likely to stand.

This comma is sometimes omitted. For this comma, I’m less inclined to think it’s about flow and more inclined to attribute the decreased use to forgetfulness or hasty editing. But its absence can cause miscues and impose re-reading. Let’s save this comma.

3. Comma before and after appositives

An appositive restates or renames a noun it follows, and here we’re technically talking about a nonrestrictive appositive—which requires a pair of commas. Examples:

Wrong: The defendant, Chris Lang did not hire a lawyer.

  • Right: The defendant, Chris Lang, did not hire a lawyer.

Wrong: The vehicle in question, a red convertible with Louisiana plates was seen leaving the parking lot.

  • Right: The vehicle in question, a red convertible with Louisiana plates, was seen leaving the parking lot.

Wrong: Jamie Khatri, the company’s chief technology officer flew to Austin for the meeting.

  • Right: Jamie Khatri, the company’s chief technology officer, flew to Austin for the meeting.

For clarity and precision, we need both commas. Again, I suspect that the decreased use arises from hasty editing—not from a change in the rule that applies in some other genre of writing such as literature, journalism, or college essays. Let’s save this comma.

You can help by retaining these three commas in your own writing. And if you’re invited to edit or comment on someone else’s writing, you can encourage the use of these commas—kindly and warmly, of course.

Emphasis at the End

Using placement and subordination to create emphasis.

My books: Legal Writing Nerd and Plain Legal Writing

A criminal trial has ended and you’re at the penalty phase. If you’re Terry Chima’s defense lawyer, which would you rather hear the judge say?

  1. Terry Chima, I believe that you are genuinely sorry and sincerely committed to being a productive member of society, but the crime you committed warrants a significant punishment.
  2. Terry Chima, the crime you committed warrants a significant punishment, but I believe that you are genuinely sorry and sincerely committed to being a productive member of society.[1]

Most readers believe that example 2 is more favorable to the defense, inferring that it suggests a shorter, less drastic penalty, while example 2 implies a longer, harsher one. But why?

It’s because of placement.


Most writing experts believe that the end of a sentence is a place of emphasis. The concept stated at the end stays with the reader and receives extra punch. “End sentences with a bang, not a whimper,” according to Joe Glaser, the author of Understanding Style.[2] And the writing expert David Lambuth says that “the end is emphatic because it makes the last impression. What we hear last is usually the most vivid to us.”[3]

Ending placement is the key difference in examples 1 and 2. As the defense lawyer, when the sentence ends with “warrants significant punishment,” I get a bad feeling in my stomach. But if the statement ends with “sincerely committed to being a productive member of society,” my hopes for a lighter penalty rise.

Here’s another example. Which sentence suggests that the writer is more peeved with the judge?

3. Although the plaintiff’s lawyer lied about his client’s injuries, the judge did not sanction him.

4. Although the judge did not sanction the plaintiff’s lawyer, the plaintiff’s lawyer lied about his client’s injuries.

It’s subtle, but most readers perceive example 3 to be expressing frustration with the judge, and example 4 to be expressing frustration with the plaintiff’s lawyer. The difference arises from subordination. As Bryan Garner put it: “With subordination, the phrasing immediately shows that one clause is more important than the other. You’re amplifying the one and diminishing the other.”[4]


As a sentence structure, subordination uses two clauses: a dependent clause that begins with a subordinating adverb, and a main clause. Some subordinating adverbs have to do with time—after, before, since, until, when, whenever, and while—but when used for emphasis, the most common subordinating adverbs are although, because, despite, even though, and though.

Although subordination can occur before or after the main clause, using subordination for emphasis typically arises from placing the idea to be de-emphasized in a beginning, subordinated clause, and the idea to be emphasized in an ending, main clause.

From example 3: The beginning subordinated clause is Although the plaintiff’s lawyer lied about his client’s injuries, and the ending main clause is the judge did not sanction him. Thus, the theory of emphasis through subordination goes like this: Typical readers give—

  • reduced emphasis to beginning, subordinated clauses,
  • extra emphasis to main clauses, and
  • extra emphasis at the end of a sentence.

So when you have two ideas to express, and you’d like to emphasize one, the recommendation is to begin the sentence with a subordinated clause containing an idea you want to de-emphasize, and end the sentence with a main clause containing the idea you want to emphasize.

Even though subordination isn’t a magic trick, it can produce subtle emphasis in a sentence.

My books: Legal Writing Nerd and Plain Legal Writing


[1] Adapted from Patrick Barry, Good With Words: Writing and Editing 33 (2019).

[2] Joe Glaser, Understanding Style: Practical Ways to Improve Your Writing 190 (2010).

[3] David Lambuth, The Golden Book on Writing 26 (2d ed. 1983).

[4] Bryan A. Garner, LawProse Lesson #238: Are you coordinated or subordinated? (Nov. 2, 2019),

Over-simplified writing advice, 3

Part 3 of 4

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It

I recently read some writing advice offered by a capable lawyer with 10 years’ experience. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice with my own take.

“Never use passive voice.”

It would be difficult to follow this advice literally, and it’s not necessary to write a memo or motion or brief and never use the passive voice.[1] Better advice for the passive voice would be avoid defaulting to the passive voice—use it sparingly but deliberately. I’ve written about the passive voice here:

In that post, I pointed out the drawbacks of the passive voice: that it can be wordy and dry and that it’s overused in legal writing. But I also acknowledged that it has its place. We shouldn’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

1. When the doer of the action is unknown or irrelevant: The police were notified.

  • We don’t know or care who notified the police; we’re just saying they were notified.

2. When the key focus is on the recipient of the action, not the doer of the action: Treyco’s account was frozen, not Mercury’s account.

  • This sentence focuses on which account was frozen, not on who did the freezing.

3. To avoid the appearance of responsibility: The claim files had been deleted.

  • This sentence hides the one who did the deleting. Avoiding the appearance of responsibility is occasionally useful in legal writing, but if you use the passive voice to hide responsibility a lot, your readers will figure it out.

Again, my view is that for high-caliber, sophisticated legal writing, absolute prohibitions typically aren’t the best advice. Inform yourself about the advice, consider your audience and purpose, and exercise your editorial judgment.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It


[1] In fact, in an example the lawyer displayed for another purpose, there were three uses of the passive voice in the first four sentences. All three uses were appropriate; I’m just pointing out that it’s not reasonable to advise, “Never use passive voice.”