Category Archives: Law Practice

Creating Shorthand References (hereinafter “CSR”)

Advice for creating shorthand references

My books: Legal Writing Nerd and Plain Legal Writing

In legal documents, we sometimes need to create shorthand references for recurring names. For example, it’s not unusual for a legal document to begin like this:

Plaintiffs Roger T. Howard (hereinafter “Howard”) and Leticia Howard (hereinafter “Leticia” and, together with Howard, the “Plaintiffs” or “Howards”) brought this action against and Southern National Bank (hereinafter “SNB”) and Green Fields Agricultural Company (hereinafter “GFAC”).

That’s a cluttered paragraph, but it’s not unusual. Sometimes lawyers are guilty of “painstakingly (and painfully) shortening every label on the landscape. Such a practice invites ridicule, especially after six or seven names have been defined, names that could never be confused with any others anyway.”[1]

That’s why some legal-writing experts say that creating shorthands with a parenthetical isn’t even necessary.[2] These rebels note that journalists and other writers would never do this:

President Joe Biden (the “President” or “Biden”) is expected to speak at a Memorial Day observance in Delaware this weekend….

I agree with these experts, but I’ve been unable to persuade many lawyers of this view. They say that there’s typically more at stake in a legal document (rights, duties, money, liberty) than in a news article, and legal documents place a high value on precision. So it’s natural that legal documents would contain shorthand references, and in this column I offer guidelines for creating them.

Drop the archaic word hereinafter. Simply give the full term and then the shorthand, like this: Southern National Bank (“SNB”).

Some writers drop quotation marks from the parenthetical, asserting that the defining purpose is obvious.[3] Others retain them—to clarify that the parenthetical is a defining one and not a parenthetical used for some other purpose. My view: retaining quotation marks is harmless.

Don’t create a shorthand and never use it—which happens more often than it should. Of course, it results from one of two causes: the habit of shorthanding everything upon first use without checking for subsequent use; and the result of edits that remove later uses. So as part of a thorough edit, do a search for every shorthand you’ve created. If only one shows up, delete it.

Generally avoid alternative shorthands: Roger T. Howard (“Howard” or “Plaintiff”). It’s like saying, “I’m not going to be careful, so you keep track.” Alternative forms likely arise when the writer use a form document and doesn’t want to search and replace. Do the replacing.

If the client, person, or party refers to itself in a certain way, use that form—don’t make up your own. If Green Field Marketing Company refers to itself as “GFMC,” use that. But if the company refers to itself as Green Field, use that. Don’t create unnecessary initials, although initials have their uses.

Suppose the document mentions Southern National Bank, Southern Mortgage Company, and Southern Real Estate. You could use those full names throughout—it wouldn’t be the end of the world—but you might need initials: SNB, SMC, SRE. And what if two people have the same surname? A common convention is to use given names: Roger and Leticia. Of course, using Ms. Howard and Mr. Howard is fine if the parties are spouses.

Legal writing (“LW”) already abounds with initials and acronyms (“IA”), so when you have a choice, default to words. Naturally, use well-recognized initials (NCAA, CBS) and acronyms (CERCLA, ERISA); otherwise, try to use use words. If the party is Southern National Bank, the short form “Southern” is easier to read than “SNB.”

A final tip: Try to avoid larding the opening paragraph with a half dozen defined terms. It’s actually okay to create a shorthand on the second reference. Use the opening paragraph to set the stage, provide background, or summarize your purpose.

My books: Legal Writing Nerd and Plain Legal Writing

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[1] Karen Larsen, The Miss Grammar Guidebook 42 (Oregon State Bar 1994).

[2] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 268 (2003); Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 139 (2002).

[3] Louise Mailhot & James D. Carnwath, Decisions, Decisions: A Handbook for Judicial Writing 37 (1998).

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, 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

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[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

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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.”