Category Archives: Persuasion

Both parallel and pleasing

Mastering correlative conjunctions

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

Have you ever given much thought to the pairs of words we use to create parallel constructions that make for pleasing prose? Like this:

  • The argument was not only long but also boring.

and this:

  • Counsel may either agree with or oppose the decision.

The boldface words are called correlative conjunctions, and they come in pairs. Here are the most common:

  • both … and
  • either … or
  • neither … nor
  • not only … but also

Those are the most commonly used correlative conjunctions, but there are others. Some sources add these:

  • if … then
  • just as … so [also]
  • whether … or

Legal-writing expert Bryan Garner lists six more for a total of 13.[1]

Here I’ll focus on the four most common and address two rules professional legal writers follow when using correlative conjunctions.

The most important rule is that the part of speech that follows the first conjunction must also follow the second. That is, if a verb follows the first conjunction in the pair, a verb must follow the second conjunction. So below, A and B must be the same part of speech:

  • both A … and B
  • either A … or B
  • neither A … nor B
  • not only A … but also B

A and B must be syntactically identical: both nouns, both verbs, both prepositions, and so on. Some examples:

Not this:    Many lawyers are not only smart but also think creatively.

  • Smart (adjective) and think (verb) are not the same part of speech.

 But this:    Many lawyers are not only smart but also creative.

  • Smart and creative are both adjectives.

Another example:

Not this:    The court was neither willing to look at the owner’s acts in creating a hazard nor at the dangers created when customers knocked items onto the floor.

  • The faulty correlative parallelism arises because neither precedes willing (verb) and nor precedes at (preposition).

 But this:    The court was willing neither to look at the owner’s acts in creating a hazard nor to consider the dangers created when customers knocked items onto the floor.

  • The correlative conjunctions are now parallel: neither to look … nor to consider.

 Or this:     The court was willing to consider neither the owner’s acts in creating a hazard nor  the dangers created when customers knocked items onto the floor.

  • The correlatives are parallel: neither the … nor the.

On to the second rule. A minor writing error occurs when writers use nor for the second phrase or clause in a sentence that did not begin with a phrase or clause using neither, like this:

  • The Court did not review the pleadings nor discuss the arguments.

That example misuses nor. Why? Bryan Garner says that in these constructions, “or is generally better than nor.” The initial negative—not in our example, “carries through to all the elements ….”[2] So the sentence is preferably written this way:

  • The Court did not review the pleadings or discuss the arguments.

This problem with nor goes away if you break the one sentence into two and are willing to begin with nor:

  • The Court did not review the pleadings. Nor did it discuss the arguments.

One more pointer. Don’t forget that with constructions using or or nor, the verb agrees in number with the nearest subject—the one right before the verb. So in the following examples, the verb check should agree with husband:

Not this:    Every night, either the defendant or her husband check that the store alarm is set.

But this:    Every night, either the defendant or her husband checks that the store alarm is set.

Granted, the rules discussed here are fine points, but professional legal writers follow them because they create parallel structures that are clear and pleasing to read.

My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

[1] Bryan A. Garner, Garner’s Modern English Usage 225 (4th ed. 2016).

[2] Id. at 632.

Reducing legal-writing clutter with (cleaned up)

Have you heard of (cleaned up)—the daring new explanatory parenthetical?

Suppose you’re writing a piece of legal analysis and you need to quote a case that’s quoting another case. And suppose you choose to omit some words and alter the original a bit. Under Bluebook rules, you’d cite the case you’re quoting as well as the underlying source, and you’d show every alteration and omission. Those are the rules. So you might end up with something like this:

The Court has previously observed that “[t]he failure to affirmatively establish the fact sought does not ‘prevent the cross-examination from having . . . probative value in regard to the witness’s credibility.’” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (quoting Cawdery v. State, 583 S.W.2d 705, 710 (Tex. Crim. App. 1979)).

But what if you could delete the brackets, the ellipses, and the quotation within a quotation? What if you could omit the underlying source and the parenthetical it’s embedded in? Would that be okay, as long as you told the reader you “cleaned up” what would otherwise be a messy quotation? If you did, it might look like this:

The Court has previously observed that “the failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’s credibility.” Henry v. State, 343 S.W.3d 282, 288 (Tex. Crim. App. 2018) (cleaned up).

That cleaner, neater version was the goal of attorney Jack Metzler when he invented the “cleaned up” explanatory parenthetical in 2017. Metzler has also written a law-review article about (cleaned up). The idea was to make quotations easier to read and to reduce words and bibliographic clutter. So this original—

Above all, “[c]ourts presume that the Legislature ‘ “understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.” ’ ” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968) (quoting Texas Nat’l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939))).

would look like this—

Above all, “courts presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems manifest by experience, and that its discriminations are based on adequate grounds.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996) (cleaned up).

Metzler’s idea was a hit. Lawyers and judges have started using (cleaned up), and it has appeared in dozens of appellate briefs and judicial opinions in Texas, as well as in other state courts and federal courts. Metzler’s rules for (cleaned up) appeared in the Journal of Appellate Practice and Process, and they’re quoted in full at the bottom of this post. But here’s a quick summary: Using (cleaned up) means that in quoting, the author—

  • has removed extraneous, non-substantive material such as brackets, quotation marks, ellipses, footnote numbers, and internal citations,
  • has changed capitalization without indicating the changes, and
  • has made changes that enhance readability while otherwise faithfully reproducing the quoted text.

Bottom line: using (cleaned up) makes quoting and citing easier and aids reading, too.

But beware. When you use (cleaned up), your credibility is on the line. You’re saying, “I haven’t altered this quotation unethically, and I haven’t done anything dishonest or underhanded.” If you use (cleaned up) to change the quotation in ways that misrepresent the original text, your credibility is gone.

Of course, that’s true of anything you cite or quote: if you’ve exaggerated, fudged, or lied, someone—judge, staff attorney, clerk, opposing counsel—will find you out. So consider (cleaned up) and join me in hoping the next edition of the Bluebook takes note.

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Plain Legal Writing: Do It

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Proposed Bluebook Rule 5.4: Cleaning up Quotations:

(a) Cleaning up. When language quoted from a court decision contains material quoted from an earlier decision, the quotation may, for readability, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets. Indicate these changes parenthetically with (cleaned up). Other than the changes specified, the text of the quotation after it has been cleaned up should match the text used in the opinion cited. If the quotation is altered further, indicate the changes or omissions according to Rules 5.2 and 5.3.

(b) Cleaning up intermediary case citations. In addition to the alterations described in Rule 5.4(a), when a quoted passage quotes a second case quoting a third case, the citation to the middle case may be omitted to show that the first court quoted the third. To indicate this change, retain the quotation marks around the material quoted from the third case and any alterations that were made to the quotation, and insert (cleaned up) before the “quoting” parenthetical citation to the third case. Indicate any alterations that were made to language quoted from the third case according to Rules 5.2 and 5.3.

Jack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017).

Saxon-Romance Persuasion

This post discusses two techniques for creating memorable, persuasive prose, which I discovered in Ward Farnsworth’s forthcoming book, Classical English Style. By the way, how’re you doing at spotting Saxon and Romance words? Here’s Quiz 3: name the Saxon alternative for each Romance verb: cogitate, emancipate, imbibe, inundate, masticate (answers at the end).

In persuasive writing, some judges prefer Saxon words:

  • “[The best advocates] will master the short Saxon word that pierces the mind like a spear . . . .” Hon. Robert H. Jackson, U.S. Supreme Court.1

Another example:

  • “A healthy respect for the robust Anglo-Saxon appeals more than does the Latin . . . .” Hon. Wiley B. Rutledge, U.S. Supreme Court.2

We can take advantage of this preference with two persuasive-writing techniques that combine Saxon words with Romance words—relying on differences in tone, formality, and force. The two techniques are the Saxon Restatement and the Saxon Finish.

The Saxon Restatement. With this technique, you state a proposition using primarily Romance words and then restate it using primarily Saxon words (or vice versa). Abraham Lincoln did it in his House Divided speech:

  • “I do not expect the Union to be dissolved; I do not expect the house to fall.”3

Lincoln essentially says the same thing twice: with Romance words (union, dissolve) and then Saxon (house, fall). He names lofty concepts and then brings them down to earth, creating a forceful, memorable couplet.

Winston Churchill did something similar in a famous speech:

  • “I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind.”4

Here Churchill reversed the pattern, starting with Saxon (blood, toil, tears, sweat) and reiterating with Romance (ordeal, grievous). The real, physical sacrifices are named and then connected to the abstract concepts.

I’ve created examples for modern legal writing by modifying text from appellate briefs:

  • The jury justifiably relied on the photographic evidence because images are unable to prevaricate; pictures cannot lie.

Here, image, able, and prevaricate are Romance; cannot and lie are Saxon. The lofty legal concepts are made concrete. Another example:

  • Albrecht’s only obligation under the order was to remunerate the seller for the vehicle she purchased—to pay for what she bought.

The Saxon Finish. With this technique, you state a single proposition, but after beginning with Romance words, you finish with Saxon. Oliver Wendell Holmes did it well. Here are two examples from his dissenting opinions—the Saxon Finish is italicized:

  • “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”5
  • “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”6

Holmes builds up to a big idea with Romance words; then he states the idea with Saxon words. The result is a forceful wrap-up.

I’ll give it a try:

  • Petrolco asks this court to affirm the trial court’s interpretation of section 216(b) so that punitive damages are grafted onto the text—an interpretation that produces an entirely different class of remedy from mere legislative silence. Petrolco asks too much.
  • The drug would be located in the deceased’s system only under illicit conditions because having the drug is against the law.

Granted, these techniques are used most often used in speech. Still, you should add them to your toolkit for persuasive legal writing. They constitute sophisticated rhetorical devices—they are tools of plain English.

Quiz answers: cogitate/think, emancipate/free, imbibe/drink, inundate/flood, masticate/chew

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[1] Collected in Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, Mich. B.J. 44–45 (Feb. 2005).
[2] Id.
[3] Quoted in Ward Farnsworth, Classical English Style (forthcoming).
[4] Id.
[5] Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
[6] United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

Block that block quotation

Considerations for using block quotations.

A survey of the advice on block quotations shows that it’s almost all negative: Don’t do it unless you must, say judges, legal-writing teachers, and experienced lawyers. So we should block block quotations? Why? Two main reasons.

Readers skip them. These readers include judges and their clerks. Admit it—you often skip block quotations when you read, too, so why would your readers be any different? If you put something important in a block quotation, you risk that it won’t be read.

They smack of laziness. Instead of paraphrasing, instead of summarizing, you used a block quotation—you copied and pasted. That’s the impression block quotations give, especially if you overuse them, and that perceived laziness turns readers off.

Despite these concerns, many well-written memos and briefs contain at least one block quotation and sometimes more. So the point is not to ban block quotations but to use them sparingly and effectively. Here are some recommendations.

Don’t ban block quotations; use them sparingly but well.

First, anything you block-quote must be vital. If statutory language is at issue or is crucial to your analysis, a block quotation is appropriate. And sometimes, block-quoting key statutory text can allow readers to get re-anchored in the relevant language by flipping or scrolling back to it without having to consult an appendix.

Likewise, if a binding case contains language of more than 50 words that’s directly relevant to your argument or powerfully persuasive for your position, a block quotation is appropriate. But if you harbor doubts about how vital the quotation is, you probably shouldn’t use a block quotation.

Even after you decide you need that quotation, try to shorten it to fewer than 50 words—just so you can avoid a block quotation. Yes, an embedded quotation of 49 words is still off-putting, but it’s more likely to be read because it isn’t a block.

Now, if the text is 50 words or longer and you’re certain you need it, edit it again so that when block-quoted, it’s not too long. No page-length block quotations, please. One thing more annoying than a block quotation is a long block quotation.

As you edit, show your alterations and omissions per Bluebook rules, but remember: heavy alteration or omission suggests that the quotation might be taken out of context, so go easy. One lawyer recommends that if you’ve heavily edited the block quotation, drop a footnote that contains the full text so readers can check your work.1

As a last step, write an inviting, persuasive lead-in to the block. The lead-in needs to show why the quotation is important or assert something the quotation will prove. In fact, it’s acceptable to paraphrase the quotation’s key point and use that paraphrase as a lead-in. Think of it like this: The lead-in should make the reader think, “Hmm. Is that so? Well maybe I should read this block quotation to be sure.” (Introducing quotations was addressed in this blog here.) One colleague suggested that the text after the block quotation might assert the key point, too. Readers who skip the block will still get the point—twice.

Are you going to strictly follow The Bluebook’s rule on length? In rule 5.2, The Bluebook says you must block only quotations of 50 words or more. But I say you can treat that rule as a recommendation, not binding authority. If you have a shorter quotation you’d like to highlight, you may set it off as a block if you wish.

Ultimately, you’re in charge of your block quotations, so use them sparingly but effectively.

Check out Wayne Schiess’s new book: Legal Writing Nerd: Be One.

1. Maureen Johnson, To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283, 306 (2014).