Category Archives: Teaching Legal Writing

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

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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, 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

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[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

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[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.”

Some best practices for 1L legal writing

Dear 1L,

You’re about to enter law school, so you’re about to take a legal-writing class. I’m jealous. I didn’t have a legal-writing class in my first semester of law school. My Civil Procedure professor gave me an assignment to write a memo but provided no instruction or guidance. A teaching assistant gave me a few comments—no grade. But that was 30 years ago. Your class will be different, and it will be a challenge. Here are some best practices that can help you succeed on your legal-writing assignments.

Outline. Yes, I know—no one outlines anymore, and that’s too bad. There’s solid proof that outlining improves writing in both form and content. In a book called The Psychology of Writing, Dr. Ronald Kellogg showed that students who outlined got two benefits: (1) they composed faster, typing more words in the same amount of time, and (2) they wrote more correctly, making fewer grammar and punctuation mistakes. Why? One of the important tasks in writing is ordering the content. By outlining first, these writers could devote more brain power to content and correctness—they didn’t have to worry about ordering as they wrote because they had outlined beforehand. These benefits of outlining could be yours, too.

Edit, edit, edit. Supreme Court Justice Louis Brandeis said, “There is no great writing, only great rewriting.” He meant we’ve all got to edit. As I mentioned, legal writing requires a lot of effort just to get the content right. You’ll have to master new vocabulary—lots of it, new forms of analysis and argument, and new information. All that effort will inhibit your ability to write flawless prose. It happens to my students every year. “Professor, I’m embarrassed. You found mistakes in my writing when I knew better. I don’t understand. I normally don’t make that many mistakes.” It’s normal. So outline and then get a first draft done early. Then edit ruthlessly, multiple times. Read it out loud. Do at least one edit on paper. Put it aside for a day if you can and then edit again. Editing can take your writing from average to good and from good to great.

Read the comments. When your professor returns your papers, read the feedback. I’ll admit to being frustrated after putting hours into reading and commenting on student papers when I later realize, through a conference or a rewrite, that the student didn’t read my comments. Or didn’t read all of them. Or didn’t understand some of them but didn’t ask. Hey. That’s what I’m here for. Read the comments—or listen to my feedback in conference—and if you don’t understand, ask.

Persevere. Legal writing is new, complex, and demanding. It will take your best effort, so stick with it. You can do this.

This post also appears on Legal Writing Matters.