Category Archives: Improvement

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.

 

Student Essay: Mistakes Matter

Mistakes Matter

By Belinda Schwertner

“Mistakes don’t matter” was not a phrase overheard in my first-year writing course at The University of Texas School of Law. But, in Bryan A. Garner’s 2014 ABA Journal article, A Tale of 2 Associates: How Polish and Attention to Detail Can Win the Motion, Jim, a fourth-year associate, tries to convince Denise, a second-year associate with whom he is collaborating on a motion, that mistakes are acceptable. Jim contends that minor grammatical errors are not consequential to legal writing if those mistakes are small and the writing’s meaning is clear. After some coaxing, Jim reluctantly allows Denise carte blanche to edit the motion. Denise’s careful editing helps them win the motion and convinces Jim that correcting mistakes in legal writing is worth the effort.

One question that Garner’s article invites is why Jim is hesitant to accept Denise’s help polishing his motion. Jim believes that editing for grammatical mistakes wastes both time and money. Jim reasoned that he had previously had several successful hearings with this judge without them mentioning any shortcomings in his writings. However, Jim underestimates how grammatical mistakes can take away from the substance of legal writing. Grammatical errors in legal writing can cause the reader to pause to understand the writer’s meaning—the reader’s attention span shortens while their negative perception of the writing increases. Although mediocre writing can be effective, writers should not unnecessarily burden readers with careless errors.

Another explanation for Jim’s reluctance to accept Denise’s help could be an unfounded belief that first- and second-year associates are less-skilled writers. Having more experience, Jim might believe he is a better writer (although Denise’s editing skills are superior). Perhaps Jim is unaware of nationwide advances in legal writing curriculums. Maybe Jim is too busy “working” to work on improving his writing skills. Most people dislike change; similarly, Jim might favor the status quo. However, Jim comes to appreciate that the “cost” of editing—one hour and five minutes of Denise’s time—is well worth the rewards received: their supervising partner’s praise and admiration and the judge’s acknowledgment of their well-written motion.

Bryan Garner’s tale illustrates several critical points about legal writing. For example, correcting grammatical errors can only improve substantive legal writing. A small investment of time in editing reaps huge rewards. Further, legal writers can enhance their skills incrementally, making the process less daunting. Resources available to legal writers today are vast, and many are accessible online and free. Frequently reading non-legal works, such as well-written prose and periodicals, can also improve one’s writing intelligence. Other lessons learned from Mr. Garner are that senior lawyers should not assume that just because a lawyer is their junior, they are not good legal writers. Also, people beyond the presiding judge will likely read legal writings. Impressions about a lawyer, and by extension, their firm, can be gleaned from the quality of their writing. Therefore, given the vast legal writing resources and the cost-benefit analysis of employing editing, most lawyers have no excuse not to write well. Finally, it is never too late to learn.

Since writing is what lawyers spend most of their time doing, lawyers should take steps to improve the quality of their legal writing. Law schools continuously strive to improve their legal writing curriculum. And, despite anecdotal evidence to the contrary, law students are not hopeless in their legal writing endeavors. Moreover, lawyers are prone to the cognitive bias of illusory superiority, where a person overestimates their qualities and abilities in relation to the same qualities and abilities in other people. If a lawyer harbors this cognitive bias, awareness of it might allow them to be more receptive to learning techniques that could improve their legal writing.

Another way that lawyers could enhance the quality of their legal writing would be for each state’s bar association to require coursework on legal writing as part of continuing legal education (CLE). Currently, Texas requires licensed attorneys to complete fifteen hours of CLE yearly, three of which are ethics requirements. It is not beyond reason to mandate CLE in legal writing because writing is a core skill of the legal profession. The American Bar Association’s Model Rules of Professional Conduct states in the comment section of Rule 1.3 (Diligence) that “a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Indeed, the requirement of zealous advocacy necessitates an attorney’s need to present only their best-written work.

Not all lawyers possess the same level of writing intelligence, but most lawyers can improve their writing skills with little effort. There should be no excuse for, or acceptance of, simple errors in legal writing. In 2022, spell check is not hard to use. Mistakes in legal writing are like a near miss in aviation. Even though passengers ultimately make it to their destination without injury, the journey might have been harrowing for them. Similarly, a judge may grant a poorly written motion, but at what cost to the reader and the writer’s reputation? Lawyers are known for their incredible attention to detail. Still, grammatical mistakes in legal writing can cause the reader to believe that the analysis and reasoning of the author are unsound, even though they might not be.

There is almost always room for improvement in legal writing. Most lawyers can learn to improve their legal writing through patience and practice. Also, if legal writers are diligent in correcting their grammatical errors, they will eventually require less time for editing as their writing skills evolve. Good legal writing can be powerful. The time an attorney spends editing often translates to real-world positive results. Just ask Jim.

Sentence length

Managing averages and maximums

My books: Legal Writing Nerd and Plain Legal Writing

Legal writing has a bad reputation for long sentences. Why?

Maybe reading cases in law school starts us off poorly. After all, the cases in casebooks weren’t chosen because they were beautifully written. Plus, legal writers often face short deadlines and might end up sacrificing some editing. And legal writers address complex matters—matters requiring explanation, qualification, and clarification.

But we can do better.

First, we can let go of the thought that a concept and everything that qualifies that concept must be in a single sentence:

[Lawyers] think that in order to achieve clear understandings, they must stuff every related idea into a single sentence between an initial capital letter and a final period. They are, of course, wrong.[1]

Second, we can educate ourselves. Here’s what the experts say about average sentence length and maximum sentence length.

Average sentence length

What’s a good average length? The experts say—

  • “below 25 words”—Richard Wydick[2]
  • “about 22 words”—Laurel Currie Oates & Anne Enquist[3]
  • “about 20 words”—Bryan Garner[4]

That’s the average—some shorter, some longer. All the experts quoted above agree that variety in sentence length is important. And when you write about complex subjects, push the length down: “The basic rule is this: The more complicated your information is, the shorter your sentences should be.”[5]

You can program Microsoft Word to tell you your average sentence length. Go to File and select Options and then Proofing. Check the box for “Show Readability Statistics.” Now, after a spell-check, you’ll see a display that includes your average sentence length, along with other information. (Note: a document with legal citations will usually show a shorter-than-actual average sentence length because of all the abbreviations and periods.)

Now ask yourself these questions: Is my average sentence length appropriate for the subject and the audience? Are all the sentences about the same length, or do I have good variation? Do I have too many short sentences, so that my writing is choppy? Based on your answers, edit your sentences.

Maximum sentence length

How many words is too long for one sentence? It’s a tough question, and the experts don’t offer much guidance. Here’s mine.

Are you confident you could write a readable, clear sentence of more than 45 words? I’m not sure I could, so that’s the limit I apply to my own writing. Of course, some gifted writers can create long sentences that are pleasant to read; they usually use lengthy parallel phrases in a series. That technique works well in literature. But for most of us doing legal writing, staying under 45 words will work better. When I write a single sentence that goes over 45 words, I usually break it up.

But it’s not realistic for a busy legal writer to count words while writing. When you’re writing your first draft, let your creative mind produce the text without interference from your internal editor. Let the text—and the ideas—flow.

Then shorten long sentences on the edit. When you encounter a single sentence that bogs you down, tires you out, or annoys you, highlight it and look at the word count. If the word count is over 45, re-work the sentence or break it up.

Those are the three goals for sentence length: readable average length, variation in length, and nothing too long.

My books: Legal Writing Nerd and Plain Legal Writing

_____

[1] Ronald L. Goldfarb & James C. Raymond, Clear Understandings: A Guide to Legal Writing 47 (1982).

[2] Richard Wydick, Plain English for Lawyers 36 (6th ed. 2019).

[3] Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 523 (5th ed. 2010).

[4] Bryan A. Garner, Legal Writing in Plain English 47 (2d ed. 2013)

[5] Steven D. Stark, Writing to Win: The Legal Writer 46 (2012).

Write Better Faster

Six tips and techniques

A recurring question I get from lawyers, law students, and other readers is how to implement the best writing advice while writing under harsh deadlines and heavy workloads. “I want to write better,” these lawyers say, “and I know the things you recommend are good. But I just don’t have the time.”

A variation of this question is this comment: “Even if I had the time, the client won’t want to pay my fee if I take the time necessary to implement all the writing techniques you recommend.” So the ultimate question is this: “How can I write better faster?”

I present here some  advice I usually give combined with the best ideas from real lawyers who deal with real clients and real deadlines.

Spend time on an outline. But outlining will slow things, down, right? No. A good outline, especially one that has complete sentences, will make the composing go faster, according to the author of The Psychology of Writing, Ronald Kellogg.[1] The more detailed the outline, the faster the composing will go. The better the outline, the less time you’ll have to spend re-ordering. The earlier you start the outline, the more payoff you’ll get from outlining.[2]

Learn to compose rapidly. Get a draft down fast by shutting out your internal editor or “judge.” Save editing for later. Just write, and write fast. Compose in quiet or after work hours, away from distractions. And try training yourself to type faster—75 words per minute at least. If you’re unable to improve your typing speed (and I’ll confess it’s been tough for me), try voice-recognition software. I once brought a major project in on time by speaking it into voice-recognition software. Yes, I was working from a detailed outline.

Raise your writing IQ. Attend legal-writing CLE courses, read books on legal writing, and study the best sources on English and legal-word usage. Your goal is to speed up both composing and editing. The more you know, the fewer writing slips you’ll make while composing. And although you’ll never consider a first draft a final product, your first drafts will get better and better. So then you’ll save time on editing, too.

Thoroughly understand the material (or write what you know). Writing goes faster if you know the subject well. For example, when I writing about legal writing, I zoom. When I write about a topic that’s new to me, I plod. It’s natural. So if you’re not consistently able to write about subjects you know well, you must master the material in order to write quickly.

Establish and stick to deadlines. Create and follow a routine for completing all major writing projects, with deadlines for researching, outlining, composing, and editing-revising. For editing, create an evolving checklist of everything you know you’ll need to check. As you raise your writing IQ and as you work and re-work your routine, your editing checklist will grow—but also shrink.

Stop making excuses. Don’t blame mediocre writing on short deadlines or heavy workloads. Find a way to make the time to edit and revise extensively; revising is the only way to make mediocre writing good and good writing great. Work late, work weekends, or eat the hours if you think the client won’t pay. Even decline projects if you must. But do the work necessary to produce a well-polished product. If you do it right every time, you’ll get faster at doing it right. If you never or rarely do it right, you won’t get faster.

I hope one or more of these techniques will work for you, so you can write better faster.

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

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[1] Ronald T. Kellogg, The Psychology of Writing 125-26, 130-31 (1994).

[2] Wayne Schiess, Should You Outline? Austin Lawyer 11 (Oct. 2015); Wayne Schiess, Outlining Effectively, Austin Lawyer 11 (Nov. 2015).

 

Inelegant Variation

Avoiding word repetition—wisely

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

It’s common writing advice to avoid repeating a word in the same sentence or the same paragraph. Here’s typical advice from Ben Yagoda, a professor of English and journalism: “Word repetition is a telltale sign of awkward, non-mindful writing.… [It] sounds like a fingernail on the blackboard.”[1] This is what he’s talking about:

  • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor in front of the soda machine so that water did not accumulate near the soda machine.

The word repetition there is truly, fingernail-scrapingly awkward. So let’s rewrite:

  • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor in front of the soft-drink dispenser so that water did not accumulate near the carbonated-beverage appliance.

Better? That’s an example of what the writing expert Patricia O’Conner calls “Slender Yellow Fruit Syndrome,” as in “Freddie was offered an apple and a banana, and he chose the slender yellow fruit.”[2]

Better writing advice would be to avoid word repetition without resorting to “elegant variation,” the practice of using a synonym or near-synonym or creating your own, made-up synonym (slender yellow fruit). The English-usage expert H.W. Fowler coined the phrase “elegant variation” for this writing flaw and said, “The fatal influence is the advice given to young writers never to use the same word twice in a sentence―or within 20 lines or other limit.… There are few literary faults so widely prevalent ….”[3]

Today, the writing expert Bryan Garner gives it a more apt name: “inelegant variation,” and he doesn’t like it either: “Variety for variety’s sake can confuse readers.”[4] And as to legal writing, Garner qualifies the advice: “One should not repeat a word in the same sentence if it can be felicitously avoided.”[5]

So let’s rewrite our example to avoid needless repetition but also to avoid inelegant variation. How? There are other tools, but we can often avoid repetition and inelegant variation by using pronouns carefully and by eliding understood concepts:

  • The defendant’s manager had seen ice on the floor near the soda machine and had asked other employees to monitor the floor there so that water did not accumulate.

Besides the guidance on word repetition generally, legal writers should remember that legal writing has terms of art, standard terminology, and stock phrases. Varying those can cause problems: “If we use the word ‘negligence’ in one paragraph and ‘fault’ in the next, the reader will wonder if we are talking about the same thing or something different.”[6] So say Harold and John Warnock, a father-son pair of lawyers. Their advice? “Do not vary key terms.”[7]

That means that legal writers shouldn’t do this:

  • The claimant first asserted that …. Nevertheless, the hearing examiner refused to consider the complainant’s submission …. On no other occasion did the movant mention the incident ….

This is confusing because the reader likely wonders if claimant and complainant and movant are the same person, and upon realizing they are, is likely to be annoyed. In this context, repeating the word claimant is entirely appropriate, and a careful writer could work in pronouns, too.

So avoid inelegant variation. Don’t fear sounding simple, and don’t go nuts with a thesaurus. If you can’t felicitously work around it, go ahead and use the same word twice.

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

[1] Ben Yagoda, How to Not Write Bad 135, 137 (2013).

[2] Patricia T. O’Conner, Woe Is I 199 (1996).

[3] H.W. Fowler, Modern English Usage 148 (2d ed., Ernest Gowers, ed., 1965)

[4] Bryan A. Garner, Garner’s Modern American Usage 508 (4th ed. 2009).

[5] Bryan A. Garner, Garner’s Dictionary of Legal Usage 548 (3d ed. 2011).

[6] John Phelps Warnock & Harold C. Warnock, Effective Writing: A Handbook with Stories for Lawyers 137 (2003).

[7] Id.