Category Archives: Law Practice

Over-simplified writing advice, 4

Part 4 of 4

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

I recently heard a speaker criticize the following advice as “oversimplified”:

“Write short sentences.”

The speaker characterized it as “common writing advice.” I think this supposedly common advice is a straw target—a target that legal-writing teachers and experts don’t actually advise and that the speaker set up to be easily knocked down. Here’s the my own take.

The best advice is to aim for an average sentence length in the low 20s. Here’s what experts say about average sentence length in legal writing:

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

That’s average. Some sentences would be longer, some shorter. I haven’t found any experts advising a maximum sentence length, but for me, it’s 45 words. Anything longer risks losing the reader.

Other than that, the experts recommend varying your sentence length:

  • You want some longer sentences and some shorter ones.1
  • Varying your sentence lengths is generally a good idea.2
  • Keep the sentences shorter to create a sense of movement and make them easy to read, but vary length to avoid monotony.3

The occasional very short sentence (3 to 7 words) stands out and creates emphasis. The occasional long sentence—probably in a strict, parallel, three-part series—is memorable.

That’s the real advice. No one actually says “Write short sentences” without further clarification or explanation.

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

_____

1. Bryan A. Garner, LawProse Lesson #269: Average sentence length.

2. Joseph Regalia, The Art of Legal Writing: The Sentence, Appellate Advocacy Blog (May 19, 2018).

3. Ellie Margolis, 10 top tips for legal writing, Before the Bar (Nov. 7, 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.”

Over-simplified writing advice, 2

Part 2 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 pronouns.”

You can’t follow this advice literally. It’s not possible to write a memo or motion or brief and never use a pronoun.[1] Well, maybe it’s possible, but you’d end up with awful, stilted-sounding prose.

So this (4 pronouns, including 1 possessive pronoun):

  • Kessler argues that under section 101.001, she is entitled to reinstatement to her former position, to the wages she lost, and to reinstatement of seniority rights she had earned.

would have to be re-written like this (no pronouns):

  • Kessler argues that under section 101.001, Kessler is entitled to reinstatement to Kessler’s former position, to the wages Kessler lost, and to reinstatement of seniority rights Kessler had earned.

No one should write like that.

Based on the examples the lawyer gave, what was meant was probably something more like don’t over-rely on pronouns. But for a sophisticated legal writer, even that advice is too simple. I’d offer something more like ensure that each pronoun has a clear and unambiguous referent (antecedent).

In the following example, the pronoun this is vague.

  • The court held that section 101.001 does not apply. This means Kessler cannot rely on section 101.001.

It’s not clear what “this” refers to. But we can clarify by adding a noun that the word this points to (this, that, these, and those are demonstrative pronouns, which some experts call “pointing words”):

  • The court held that section 101.001 does not apply. This holding means Kessler cannot rely on section 101.001.

In the following example, the pronoun she is ambiguous:

  • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when the time for the meeting arrived, she did not show up.

“She” could refer to Ms. Gilmer or Officer Kara Lopez. To clarify the meaning, we can replace the pronoun with a proper noun:

  • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when the time for the meeting arrived, Officer Lopez did not show up.

or we can rewrite the sentence to avoid ambiguity:

  • Ms. Gilmer did not show up for a meeting she had arranged with Officer Kara Lopez to discuss the case.

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 legal document the lawyer displayed for another purpose, there were four pronouns in the first three sentences. All four pronouns uses were appropriate and precise; I’m just pointing out that it’s not reasonable to advise, “Never use pronouns.”

Over-simplified writing advice, 1

Part 1 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 adverbs.”

You can’t follow this advice literally. It’s not possible to write a memo or motion or brief and never use an adverb.[1] Based on the examples the lawyer gave, what the lawyer probably meant was something more like avoid over-using adverbs. But for a sophisticated legal writer, even that advice is too simple. I’d offer something more like reduce the use of intensifiers to bolster your assertions.

I’ve written about intensifiers:

and a modified version of those three posts appeared in a Michigan Bar Journal article

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 legal document the lawyer displayed for some other point, there were three adverbs in the first four sentences. All three uses were appropriate; I’m just pointing out that it’s not reasonable to advise, “Never use adverbs.”

Beginning with “but”

There’s no rule against beginning a sentence with but.

Sure, it’s a wise admonition from middle-school English teachers that novice writers avoid beginning a series of sentences with but.

  • In July we went to Six Flags. But it rained that day. But my mom said we could go again later. But by August, we didn’t have time. But I really wanted to go.

In high school, many English teachers embrace the beginning but. My son’s 9th-grade English teacher included “beginning with a conjunction” in a list of writing techniques, offering this example, But how could this be? and requiring students to create their own examples.

What? Teaching kids it’s okay to begin a sentence with but? No wonder writing skills are in decline and college students (not to mention law students) don’t write well.

But wait.

I applaud this high-school teacher, and he’s in line with the general view of numerous writing authorities.

I’ve made this point before: Lite Connectors, Austin Lawyer 13 (Dec. 2008 / Jan. 2009). I won’t rehash the sources I quoted there, but I’ll refer you to Bryan A. Garner, On Beginning Sentences with But, Mich. B.J. 43 (Oct. 2003); The Chicago Manual of Style (“a perfectly proper word to open a sentence”); and the Internet, where a Google search for “beginning with but” turns up many reputable authorities recommending the practice.

As with many writing “rules,” the truth is that beginning with but isn’t about wrong or right; it’s about formality, emphasis, and style. So don’t uncritically apply this nonrule. Think about your writing goals and options and decide how you want to use the language.

Let’s start with formality. Although we should be comfortable beginning with but in e-mail messages, print correspondence, and inter-office memos, some lawyers avoid the practice in formal documents like motions, briefs, and judicial opinions. Yet the technique has been used in formal legal documents for centuries. Here are some examples.

From a judicial opinion in 2013:

  • “But this case has nothing to do with federalism.” City of Arlington v. FCC, 569 U.S. 290, 305 (2013).

From a judicial opinion in 1901:

  • “But this is not sufficient.” Colburn v. Grant, 181 U.S. 601, 607 (1901).

From a judicial opinion in 1793:

“But this redress goes only half way.” Chisholm v. Georgia, 2 U.S. 419, 422 (1793).

From an appellate brief in 2003:

  • “But the EPA cannot claim that ADEC’s decision was unreasoned.” Alaska Dept. of Envtl. Conservation v. EPA, 2003 WL 2010655 at 46 (U.S. Pet. Brief 2003).

And from the U.S. Constitution:

  • “But in all such Cases the Votes of both Houses shall be determined by yeas and Nays . . . .” U.S. Const. art. I, § 7.

In fact, the Constitution has seven sentences beginning with but.

If we accept that beginning with but is appropriate for formal legal documents, then it becomes a tool we can use to manage emphasis. Using the example from Arlington v. FCC, note the differing emphases in these three versions:

  1. But this case has nothing to do with federalism. (succinctly emphasizes the contrast)
  2. However, this case has nothing to do with federalism. (contrasts but moves more slowly)
  3. This case, however, has nothing to do with federalism. (even slower and emphasizes this case)

You can do more than use the technique for emphasis. Once you’re comfortable beginning with but, you can use it to create readable, crisp transitions that quickly orient the reader to a change of direction. For crisp transitions, yet is a great word to begin with, too.

From a judicial opinion in 1968:

  • “Yet we see no possible rational basis.” Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 75 (1968).

Yes, you can begin with however or in contrast or on the other hand. They’re fine. But now we know that beginning with but is fine for formal legal documents, gives us a tool for managing emphasis, and makes a great connector.

After all, there’s no rule against beginning a sentence with but.