Category Archives: Improvement

When Verbs Become Nouns

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

In legal writing, we often overuse nominalizations.

Some legal writing contains nouns that could have been verbs. These nouns wanted to be verbs—they really did. But lawyerly habits and the default patterns of legal writing often tempt us to use the noun form instead.

Nouns that could’ve been verbs are called nominalizations. (That’s a big word, and experts have coined other, catchier names: hidden verbs, buried verbs, zombie nouns.) Here’s what they look like:

  • The prosecutor’s expectation was that defense counsel would make an objection.

That sentence contains two nominalizations: expectation and objection. Let’s revise the sentence by turning those nouns back into verbs:

  • The prosecutor expected defense counsel to object.

This example shows two benefits of using verbs in place of nouns.

  1. By using verbs instead of nouns, you save words: this example went from 11 words to 7. Sometimes when you shorten a sentence, you lose some meaning or some key content, but not here. Fixing nominalizations almost always allows you to retain the meaning but use fewer words. That’s concision.
  2. By using verbs instead of nouns, you invigorate the text: the verbs in the original were was and make. Nothing wrong with those verbs, of course, but they’re not forceful or vigorous. The revision uses stronger verbs: expect and object.

Nominalizations aren’t wrong or grammatically incorrect, but they’re overused in legal writing. As a result, legal-writing experts often single them out for comment:

“Watch for and replace nouns created from stronger verbs.”1

“Use base verbs, not nominalizations.”2

“Nominalizing is one of the most serious afflictions of legal prose, draining a sentence of vitality.”3

“Nominalizations are large and clunky, and they serve only to confuse the reader by weighing down sentences.”4

Here are some of the most common nominalizations in legal writing. Think of the verb form you could use instead:

be in violation of
bring suit against
come to a resolution
conduct an analysis
enter into a settlement
give notice to
make a payment
make a recommendation
make an argument
perform an examination
place emphasis on
provide an explanation
take into consideration

Why do legal writers over-use nominalizations? I have two theories.

First, nominalizations are typically longer, bigger words, and they sound formal. Sometimes we legal writers want to sound formal, serious, or even heavy. Although there’s nothing wrong with sounding formal, a less-formal tone is usually more reader-friendly.

Second, we often think conceptually—we think of things, of nouns. Returning to our first example, if I’m the writer, I’m thinking about an expectation, and the expectation is about an objection. So I naturally end up writing a sentence with the nouns expectation and objection. Again, there’s nothing wrong with thinking of concepts and then writing those concepts down. But on the edit, check for nominalizations and see if you can shorten and invigorate your prose.

Here’s one more example. Spot the two nominalizations in this sentence:

  • The insurer had no authorization to make a distinction between existing patients and new patients.

The two nominalizations are authorization and distinction. By using their verb forms instead, we cut the weak verbs had and make, we enliven the text by focusing on actions rather than things, and we shorten it from 15 words to 12:

  • The insurer was not authorized to distinguish existing patients from new patients.

So when you edit, look for nominalizations—nouns that could have been verbs—and when you can, return them to their livelier form.

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

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1. Terri LeClercq, Guide to Legal Writing Style 58 (4th ed. 2007).
2. Richard Wydick, Plain English for Lawyers 23 (5th ed. 2006).
3. Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to Writing Well 129 (2d ed. 2002).
4. Charles N. Insler, Kill Nominalizations, Breathe Life Back into Briefs, 59 No. 10 DRI For Def. 99 (Oct. 2017).

Improving Your Legal Writing Throughout Your Career

Introduction

Are the legal writing classes you had in law school the last writing training you’ll need for your career?

If you practice bankruptcy law, was a law-school course the last bankruptcy training you’ll need? I know the answer to that because I was a bankruptcy lawyer before I became a legal-writing teacher. The answer is no. You’ll need to stay current on bankruptcy law; you’ll need to read the recent cases and keep up with changes in the Bankruptcy Code; you’ll need to keep your knowledge and skills sharp.

The same is true for legal writing.

Legal writing is like any skill or any substantive topic: there’s always more to learn, and there’s always room for improvement. Here’s how in six parts.

Admit the truth

When I was a full-time practicing lawyer, I thought I was a good writer. I believed I was above average within the profession. I was 8 years into my job as a legal writing teacher before I realized I hadn’t been very good at all. I had been quite mediocre. I was poorly educated about the standards of high-level professional writing, and I was ignorant of my own limitations.

Was I unique?

Probably not. Many practicing lawyers believe themselves to be good writers, above average within the profession. I’ll let you be the judge of whether most lawyers are above average. I’ll simply say this:

The first step to becoming a good legal writer is to admit you have room to improve.

Get some references

Once you’ve admitted you have room to improve your writing—that you still have things to learn—start learning. A great way to learn about writing is to consult the experts. When you have a question about writing, don’t rely on half-remembered “rules” from high school English class. Look it up. But where?

The Internet works, and here are two websites I like:

But if you’re serious about legal writing, you should own some reference books, and here are three I recommend:

  • The Redbook: A Manual on Legal Style, by Bryan A. Garner
  • The Texas Law Review Manual on Usage and Style
  • Just Writing: Grammar, Punctuation, and Style for the Legal Writer, by Anne Enquist & Laurel Currie Oates

The idea is to have reliable references handy to answer questions: Do I need to capitalize appellant? How do I use the dash? Am I using shall (or which or ensure or infer or comprise) correctly? Plus, you inevitably increase your writing IQ whenever you serendipitously stumble upon an interesting entry.

Professional writers consult writing references, and you should, too.

Read the best books

If you’re really serious about improving, you’ll have to do more than consult references. You’ll have to study the principles of good writing and good legal writing. But how, when you’re busy?

Set a goal to read one book on writing every year. One per year. You can do that, right?

There are lots of good books on legal writing out there, and here are some I like:

  • Legal Writing Nerd: Be One by Wayne Schiess
  • Point Made by Ross Guberman
  • The Elements of Legal Style, by Bryan A. Garner
  • Lifting the Fog of Legalese by Joseph Kimble

These books are great sources of legal-writing knowledge, and they’re also well written. That’s why:

Reading the best books teaches you writing and exposes you to good writing.

Practice what you learn

You’re reading about writing and you’re consulting writing references. You’re becoming an informed legal writer. Now practice what you’re learning.

Of course, for any working lawyer, writing practice is part of the job: you’re writing all the time. Yet we all tend to rest on plateaus—we write in the same way we always have, with the same habits, the same mistakes. That’s why studying writing is so important. Practice without study is usually just repetition. So experiment with things you’re learning. Try new techniques and master new approaches to writing.

Through study and practice, you’ll become a better editor of your own work.

Edit better

We all understand that editing is a crucial part of the writing process. Most of us (and don’t assume you’re the exception) can’t produce high-quality writing in one draft (or even two). We must edit, and here are two suggestions for doing it better.

First, leave plenty of time, even though it’ll be hard to do. One expert on legal writing, Bryan Garner, has acknowledged that “the modern practice of law does not tolerate the type of revisory process necessary to produce a polished product.” Garner’s Dictionary of Legal Usage 533 (3d ed. 2011). That may be true, but you should still try to give yourself more time to edit. How much time? One pro recommends half the time on a writing project. Debra Hart May, Proofreading Plain and Simple 46 (1997). Can you afford that? Can your clients? It’s up to you, but more editing means better writing.

Second, use more than one technique when editing:

Do you edit on the computer screen?

  • That’s fine, but it’s not enough. Do some editing on a hard copy, too; we read and react differently to screen text and printed text.

Do you read the text out loud?

  • That’s great: you’re using your ears, not just your eyes, to help you edit. Now go further and have a trusted colleague read it and suggest some edits.

Do you read the document in reverse, from the last sentence to the first?

  • Good. This technique tricks your mind, so you’re not familiar with the text; familiarity leads to poor editing. Now read only the topic sentences. Next read the opening and closing paragraphs.

Mediocre writing becomes good writing only through editing.

Accept critique

Now here’s the hardest part: seek and welcome critiques and candid suggestions for improving your writing. This one’s tough because it’s natural to be defensive about your writing—maybe even insecure. I know I am. But when I avoid critiques, I don’t improve much. I rest on a plateau.

So open yourself up to honest critique. Find a trusted colleague, friend, or supervisor, someone whose judgment and writing you respect. Then ask for suggestions and take them to heart.

The best writers are open to critique.

Good luck.

Somewhat Qualified, Part 1

Don’t overuse qualifiers in stating facts. Key takeaways:

  • qualifiers can weaken factual statements
  • dropping the qualifier and specifying instead often improve the factual statement

Legal writing deals with concepts that often require qualification, so legal writers occasionally use qualifiers. (I used two in that sentence: often and occasionally.) In this post, I define qualifiers and discuss the experts’ advice for using them when writing about facts. I then offer two recommendations.

A qualifier is a word or phrase, especially an adverb or adjective, that clarifies or modifies another word. We use qualifiers to soften or limit, and intensifiers (discussed in this blog here, here, and here) to strengthen and bolster. It’s the difference between “the cleaning solution was somewhat defective” (qualifier) and “the cleaning solution was highly defective” (intensifier).
The most common fact qualifiers in legal writing relate to frequency and quantity. Here’s a representative list:

  • generally
  • often
  • occasionally
  • probably
  • usually
  • slightly
  • sometimes
  • somewhat
  • typically
  • virtually

Advice from the experts is uniform: qualifiers applied to facts are undesirable in legal writing. In fact, Garner’s Dictionary of Legal Usage contains an entry on qualifiers called Weasel Words, and Garner says these words “have the effect of rendering uncertain or toothless the statements in which they appear.”[1] New York trial judge Gerald Lebovits says that instead of using words like typically or usually, legal writers should “resort to the exact figure … or rethink your decision to resort to the qualifier in the first place.”[2]

Steven Stark, a trial lawyer and the author of Writing to Win, says, “Opinions can be qualified, but facts should not be.” He advises, “If you don’t know a fact, don’t hedge—find it out or somehow write around it.”[3] And one of my colleagues, also an experienced trial lawyer, “views a qualifier as a red flag—either the attorney hasn’t nailed this fact down yet or it’s maybe not true.”

That’s all good advice, and I’ll add only one comment. You can’t eliminate all qualifiers. They’re occasionally (qualifier) necessary, and sometimes (qualifier) harmless. For example, there’s no flaw in this sentence: “About half the time, Crosby, not the supervisor, gave the instructions.” The qualifier (about) serves only to soften the possible implication that the half was exact—precisely 50%. That’s harmless.

So rather than banishing qualifiers, the better practice (as with all legal-writing tips) is to inform yourself of their effects and exercise your editorial judgment as to keeping or cutting. Now the tips.

1. Drop the qualifier.
Your fact statement might be better without the qualifier, and it’ll certainly be more concise. So instead of “the cleaning solution was somewhat defective,” you can write, “the cleaning solution was defective.”

Here’s another example: “The average person usually waits three months before seeing a doctor.” The idea is already qualified by the “average person,” so we can omit usually: “The average person waits three months before seeing a doctor.”

2. Quantify or specify instead.
Another tip is to replace the qualifier with specifics. For example, here the writer uses virtually to make a general statement: “There is virtually no seismic data on the Freda Turk Ranch.” If there’s no data, we can apply tip number 1 and write, “There is no seismic data on the Freda Turk Ranch.” But if there’s some data, it’s better to specify: “There were two seismic surveys completed 22 years ago on only a portion of the Freda Turk Ranch.”

So be somewhat bold when you write about facts, and you’ll generally be more credible.

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  1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 938 (3d ed. 2011).
  2. Gerald Lebovits, The Worst Mistakes in Legal Writing, Part 4, N.Y. State B. Assoc. J. 60, 63 (June 2018).
  3. Steven D. Stark, Writing to Win: The Legal Writer 45, 46 (2d ed. 2012).

14 editing tips

Lawyers are professional writers, so they’re professional editors, too. Here are some editing tips I’ve gleaned from experience and the sources cited at the bottom. Send your tips to wayne@legalwriting.net

  1. Admit that bad writing becomes good and good writing becomes great only through editing.
  2. Start composing (writing the first draft) earlier, without waiting to be finished with the research.
  3. Compose freely—avoid editing while composing.
  4. Build in ample time for editing—some suggest half the time on the project—and get in the habit of leaving a lot of time for editing.
  5. Use multiple techniques to trick your mind into not being familiar with your own writing: read aloud, edit from the end to the beginning, edit from the middle to the end and then from the beginning to the middle, edit one line (as opposed to sentence) at a time.
  6. Do some editing in print and some on a screen.
  7. When editing on a screen, alter the line breaks (squeeze in the margins) or enlarge the display size to make the text look less familiar.
  8. Take multiple passes and avoid trying to edit for everything at once: devote each editorial pass to a particular editing task, find or create an approach to editing in stages or passes, be sure the passes address both large-scale and small-scale matters, be sure the passes address both professional legal English prose and legal authority (and citations if any).
  9. Employ an editing checklist—a list of mistakes you make, of required parts the document needs, and of formatting and other matters to check: find a recommended editing checklist or create your own. As you master certain techniques and eliminate those glitches from your drafts, delete them, move on to other matters, and add them to your evolving checklist.
  10. Use the Search or Find function to search the document for every instance of various items, verifying that each is correct: search for every apostrophe, search for every quotation mark, search for every colon, search for every semicolon, search for every instance of –ly (thereby locating many adverbs and giving yourself a chance to eliminate weak adverbs). Add searches that are tailored to your writing or to the particular document.
  11. Employ the spell-checker effectively: learn its settings and set them to your preferences.
  12. Employ the grammar-checker wisely: change its settings and identify the things it’s good at detecting and the things it’s terrible at.
  13. Ask a trusted colleague to edit the document.
  14. Use a commercial application to help you edit.

Sources

Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer

Michael H. Frost & Paul A. Bateman, Writing Deskbook for Administrative Judges

Bryan A. Garner, Garner’s Dictionary of Legal Usage

Debra Hart May, Proofreading, Plain and Simple

Megan McAlpin, Beyond the First Draft

Wayne Schiess & Elana Einhorn, The Five-Pass Approach to Appellate Editing, 27 Appellate Advocate 41 (2015)