Category Archives: Persuasion

Block that block quotation

Considerations for using block quotations.

A survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons.

Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read.

They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off.

Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations.

First, anything you block-quote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix.

Likewise, if a binding case contains language of more than 50 words that’s directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate. But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation.

Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block.

Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation.

As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1

As a last step, write an inviting, persuasive lead-in to the block. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this blog here.) One colleague suggested that the text after the block quotation might assert the key point, too. Readers who skip the block will still get the point—twice.

Are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

Ultimately, you’re in charge of your block quotations, so use them sparingly but effectively.

Check out Wayne Schiess’s new book: Legal Writing Nerd: Be One.

1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).

Somewhat Qualified, Part 2

Qualifying legal conclusions

Legal matters are often qualified: some conclusions might merit absolutely and certainly, while others deserve possibly and likely. So legal writers justifiably use qualifiers. In my last post, I discussed qualifying factual statements; here I discuss qualifying legal conclusions.

Relying on a survey of legal-writing textbooks, I can report that these are the most commonly recommended qualifiers for legal conclusions:

  • likely
  • probably
  • plausibly
  • possibly
  • should

The most frequently recommended are likely and its forms, with probably coming in second.

Many of the textbooks surveyed discuss the traditional, predictive memorandum, in which a lawyer predicts an outcome that may be less than certain. But the same qualifiers are useful in other contexts, too—whenever a lawyer gives advice or offers a recommendation.

In fact, likely and its forms are part of a useful continuum from positive to negative certainty. At one end is a direct yes or will—a legal result will happen; the outcome is certain. At the other is no or will not. In between are likely and unlikely, which might be further qualified: highly likely, highly unlikely, and so on.

Now the advice.

1. Don’t qualify.

As with much writing advice for adverbs, adjectives, intensifiers, and qualifiers, the best advice is to avoid them when you can. Bryan Garner recommends that legal writers “toss out timid phrases.”[1] What’s more, he calls these qualifiers Fudge Words and offers as an undesirable example, “It would seem to appear that….”[2] That’s a trifecta: three Fudge Words in one clause: would, seem, and appear.

The urge to qualify is natural, but legal writers must be careful of “overhedging.” Granted that legal outcomes are rarely certain, we sometimes overcorrect and qualify too much. It’s a natural tendency, and novices might be particularly vulnerable.

In fact, a colleague in another state forbids his first-year law students to qualify conclusions at all. He believes it forces them to research carefully, analyze precisely, and write clearly.[3] But even if you don’t enforce a prohibition, it’s a good default: don’t qualify. For example (qualifiers are in boldface):

  • Before: A possible lawsuit by Heather Green against her employer, Manzares & Cline LLP, could likely survive a motion to dismiss.
  • After: A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will survive a motion to dismiss.

2. Qualify and explain.

When you decide that you must qualify your conclusion, that you must hedge, do your best to explain why—immediately and concretely. Explaining has two benefits.

You benefit. Forcing yourself to articulate why you’ve qualified your conclusion can lead to insights about the level of qualification. Maybe you over- or under-qualified your conclusion, which you can see now that you’ve had to explain it. Revise accordingly.

Readers benefit. Explaining why you qualified a conclusion serves clients and decision-makers. They already know that likely means better than 50-50 but not a sure thing. By explaining, you make your conclusion more concrete and empower them to ask additional questions or pursue other options.

Here’s an example that uses the qualifier likely and then gives a concrete explanation of why the writer qualified the prediction:

  • A lawsuit by Heather Green against her employer, Manzares & Cline LLP, will likely survive a motion to dismiss. Nonlawyer employees may sue for retaliation because it encourages reporting of illegal activities. But in-house counsel may not sue because lawyers have an independent ethical obligation to report illegal activity. Green, an associate, did not represent her employer as an attorney, as in-house counsel do. She is not under the same ethical obligation to report illegal activity and deserves the incentives provided by a retaliation suit.

So set your default at no qualifications, but when you must qualify, be clear about why.

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[1] Bryan A. Garner, The Elements of Legal Style 35 (2d ed. 2002).

[2] Bryan A. Garner, Garner’s Dictionary of Legal Usage 381 (3d ed. 2011).

[3] Andrew J. Turner, Helping Students Grow Professionally and Overcome Fear: The Benefits of Teaching Unqualified Brief Answers, 25 Perspectives: Teaching Leg. Res. & Writing 3, 4-5 (2016).

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).

Introducing quotations

Inviting readers to read, not skip, your quotations

Legal writers often need to use quotations in persuasive documents. Quoting a reliable source adds credibility to your assertions and can relieve the reader of independently checking a source. In this column I’ll discuss a technique for formally introducing quotations that can enhance persuasive force and invite readers to read the quotation—not skip it.

But first, two caveats: (1) Legal writing requires scrupulous honesty and care in quoting; misquoting a source, intentionally or accidentally, harms your credibility. (2) Legal writers should avoid over-quoting; use quotations for crucial legal language or to clinch a key point. Otherwise, paraphrase.

And this post isn’t about incorporating a quotation into your own textual sentence, like these examples:

  • The relevant statute states, “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]
  • The relevant statute provides that “[a]ny taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, I’ll address a formal lead-in to a quotation.

A common and traditional way to introduce a quotation is to use a lead-in statement and a colon, like these:

  • The court stated as follows:
  • The statute provides the following:
  • The hearing officer made the following ruling:

These forms are adequate but average. In their place, I recommend introducing the quotation with what we might call an informative or persuasive lead-in by asserting a point the quotation will prove. So don’t write this:

  • The relevant statute provides authorization as follows: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

Instead, introduce the quotation by asserting a point the quotation will clinch, like this:

  • The Tax Code affirms Granger’s right to sue for a refund: “Any taxpayer who paid the sales tax has standing to sue for a refund.” [citation]

The technique works for block quotations, too. We all know that readers often skip block quotations. According to Mark Hermann, author of The Curmudgeon’s Guide to Practicing Law, “you must trick the judge into learning the content of the block quotation.”[1] He recommends summarizing the quotation’s substance in the lead-in sentence. And Bryan Garner, in The Winning Brief, offers similar advice: “For every block quotation, supply an informative, eye-catching lead-in.”[2]

So instead of this average lead-in:

  • The State intervened in operating Lincoln County Schools, and the Superintendent thus acted under authority of the Education Code, which states as follows:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

Try this:

  • Once the State intervened in operating Lincoln County Schools, the Education Code granted the Superintendent the right to make personnel decisions for the vacant principal positions:

The state board shall intervene in the operation of a school district to cause improvements to be made that will provide assurances of a thorough and efficient system of schools. Such intervention includes the authority of the state superintendent to fill positions of administrators and principals. [citation]

The lead-in asserts a point and, to some degree, summarizes the quotation to follow. With this technique, according to Herrmann and Garner, you’ll get two payoffs. First, readers might read the block: the assertive tone of the lead-in invites them to read the quotation to see if you’re right. Second, even if readers skip the block, they still get the key content.

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[1] Mark Herrmann, The Curmudgeon’s Guide to Practicing Law 8 (2006).

[2] Bryan A. Garner, The Winning Brief 501 (3d ed. 2014).

All 12 Tips for Concision

Since July 2015 I’ve been sporadically posting a series of tips for concision in legal writing. I suggested a total of twelve, and links to all of them are collected here:

1. Don’t fear possessives.

2. Remove redundancy.

3. Diminish sesquipedalian vocabulary. (Reduce big words.)

4. Cut throat-clearing phrases.

5. Eliminate excessive prepositions.

6. Deflate compound prepositions.

7. Omit needless details.

8. Edit for wordiness.

9. Make independent clauses participial phrases.

10. Use pro-verbs or elide verbs.

11. Assess passive voice.

12. Revise unnecessary nominalizations.