A reader submitted this question:

I have a colleague who often says, “Legal writing is weak.” He has never elaborated, so I’m wondering, in the context of analytical legal writing for a memo or brief, what does this mean? What makes legal writing “weak”?

Here’s my response.

“Weak” is a vague description, but it’s typical of the way we describe writing. We have a feeling that something isn’t good or strong, but we aren’t always able to articulate why. So I’ll try to be specific. (Obviously, a document with grammar and punctuation errors is weak. Let’s put those kinds of errors aside.) When I read legal writing I consider “weak,” here are the most likely causes—often many of them are present.

Over-hedging. Failing to come to a concrete conclusion or recommendation. Overusing phrases like to some extent, it is likely that, in most circumstances, it might be the case that, and so on. Overusing the stereotypical qualifying words: appears, basically, essentially, generally, might, maybe, perhaps, primarily, probably, seems, slightly, somewhat, and virtually.

Passive voice when active is more appropriate. The emails were deleted. (By whom?) Or The emails were deleted by Rogers instead of Rogers deleted the emails. Passive voice isn’t wrong, but it obscures or hides actors and is longer than the active voice.

Over-nominalized writing. Heavy use of nouns when verbs would be more vigorous. Make a payment instead of pay. Or The company achieved project completion instead of The company completed the project.

Over-formality. Big words when small ones would do. The company completed the project instead of The company finished the project. Or Cramer utilized the data reflected in the report instead of Cramer used the data shown in the report.

General wordiness. Prior to for before, subsequent to for after, with regard to for about, in connection with for for, and so on. Closely related to over-formality.

Overuse of be verbs. Beginning too many sentences with there is, there are, there were, it is, it was, and similar constructions.

More to come.

We all procrastinate, right? I was going to post this yesterday.

But procrastination is a serious problem for some legal writers, and I’ve just finished a fascinating article that educated me about the subject. David A. Rasch & Mehan Rasch, Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors, 43 N.M.L. Rev. 193 (2013). It’s a thorough treatment and showed me not only that some lawyers face career-threatening procrastination problems but that my my own problems aren’t actually that bad. If yours are, I recommend the full article; here are a few key points.

Procrastination is like many other serious problems—it has a cycle. I’ve captured the key components of that cycle here:

See 43 N.M.L. Rev. at 206.

To break out of this cycle, try these tips from the authors:

-Study your own avoidance techniques. See id. at 225. Figure out what you’re doing, and not doing, to sabotage your own ability to start and finish writing projects. In other words, identify the underlying problems.

-Be deliberate in setting times and places where you will write. See id. at 227. Make a plan. Arrange times and places where distractions are minimal.

-Schedule a regular time to write. See id. at 228. This is nearly universal advice for anyone who writes and wants to be productive. Set aside 30 minutes, 60 minutes, or more at the same time each day—or on as many days as you can—and write.

-Break up big projects into manageable chunks. See id. at 229. Writing a book seemed overwhelming to me, so I started with a chapter. The same idea can work for a memo, motion, brief, report, or any other legal document. Write one part, then another, and so on.

-Reward yourself when you’ve completed one of these other tips. See id. at 230.

-If procrastination is a big enough problem, seek professional help. See id. at 231 n. 94.

Here are two related concision techniques most of us are already using, even if we didn’t know what the techniques were called.

“Pro-verb” is a term coined by the linguist Otto Jesperson to describe verbs that are used in place of other verbs just as pronouns are used in place of other nouns. In English, the most common pro-verbs are do and its forms (did, done, doing) and do so and its forms (did so, done so, doing so). In the next examples, the pro-verb did replaces operated:

1a. The Claimant operated the same machinery that other employees operated.
1b. The Claimant operated the same machinery that other employees did.

Example 1b doesn’t save words (though it’s three syllables shorter), but in the next examples, we save words because do so replaces order a new trial.

2a. The court has the authority to order a new trial, but it should not order a new trial.
2b. The court has the authority to order a new trial, but it should not do so.

Using the pro-verb cuts the sentence from 18 words to 16 and avoids repetition.

Legal writers can also elide verbs—omit them—where they’re understood. Thus, we can shorten example 2b even further by removing words from the second verb phrase: should not do so becomes should not:

2c. The court has the authority to order a new trial, but it should not.

Now we’ve cut the sentence from 18 words to 14. Concision.