Category Archives: Improvement

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

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[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.

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.