Category Archives: Law Practice

What is “weak” legal writing?

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.

Tips for beating procrastination

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.

Justice Gorsuch’s first opinion shows his style

If you search “Neil Gorsuch writing,” you’ll find a number of sources describing new Supreme Court Justice Neil Gorsuch as a strong writer, a writer with flair, a writer with style. Justice Gorsuch has now written his first opinion for the Supreme Court, in this case: Henson v. Santander Consumer USA, Inc.  After reading it carefully and using some MS Word tools to assess it, I offer a few observations about Justice Gorsuch’s writing style.

Stripped of extraneous text and citations, the opinion has about 3000 words and 120 sentences, for an average of 25 words per sentence. That’s a good and readable average for legal writing, as I’ve written here before. The Flesch Reading Ease score is 44. That’s excellent because Supreme Court opinions average around 31.1 (The higher the number, the more readable the text.) And the Flesch-Kincaid Grade Level is 13, meaning a first-year college student should be able to understand the text. That’s pretty good too because Supreme Court opinions average about 14.5.2 Granted, the subject matter of the opinion—who’s a debt collector under the Fair Debt Collection Practices Act—wasn’t complex, and these statistical measures aren’t terribly meaningful, but they at least suggest that Justice Gorsuch tries to write readably.

Two other choices also convey the impression of a thoughtful writer who tries to write readably: Of his 120 sentences, he began 20 with a coordinating conjunction: and, or, for, but, yet, so. That’s a technique of an informal, readable style. So is using contractions, and Gorsuch used 17.

Justice Gorsuch has a few other writing preferences I find interesting.

He rarely uses traditional transition words (conjunctive adverbs) like however, moreover, furthermore, therefore, nevertheless, additionally, and so on. In fact, other than two uses of however, there are none.

Instead, he uses coordinating conjunctions, as mentioned, but he also uses phrases rather than single words, like these, all of which appear at the beginning of sentences:

  • Before attending to that job, though,
  • To the contrary,
  • By this point
  • Given that,
  • After all,
  • After all and again,
  • In the end,

But just as many of his transitions and cues appear mid-sentence, rather than at the beginning:

  • These results follow, the parties tell us, because . . .
  • Petitioners did not, however, raise . . .
  • In another subsection, too, Congress . . .
  • You might, for example, take . . .
  • This exclusion, petitioners now suggest, implies . . .
  • Legislation is, after all, the . . .

More thoughts to come . . .

_____

1. Lance N. Long, William F. Christensen, When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court, 91 Or. L. Rev. 933, 950 (2013)

2. See id. at 949.

Texas Law number 1 in salary-to-debt ratio

I think the University of Texas School of Law is awesome, and here’s some data that backs me up. The ABA Journal reports that US News has issued a new ranking that says Texas Law graduates have the best salary-to-debt ratio in the country. Here’s the story:

http://www.abajournal.com/news/article/these_law_schools_are_tops_for_median_private_sector_pay_exceeding_student/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Excellent!

Tips for Concision 10: Use “pro-verbs.” Or elide verbs.

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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.