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.

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.

Using Styles in MS Word

The learning curve is worth it.

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

Styles in Microsoft Word are pre-set formats you can apply to parts of your document. There are existing Styles for body text (Normal) and headings (Heading 1, Heading 2, etc.), and you can create other types for block quotations, bullet lists, and more. Styles allow you to set font, line spacing, paragraph spacing, automatic tabbing, and other features and then apply those pre-set formats to any document. On a PC, you can find Styles in a large section at the Home tab. (It’ll be different on a Mac.)

If you spend a lot of time creating Word documents, I encourage you to learn more about Styles. Yes, there’s a learning curve, but you’ll save time and reduce frustration if you master Styles. One good source to consult is this book:

Ben M. Schorr, The Lawyer’s Guide to Microsoft Word (2015)

Getting started

You’ll need to change Word’s default Styles. For example, the default Normal Style (for body text) uses Calibri, a sans serif font that’s probably not right for most legal documents. Some of the default Heading Styles use colored fonts—also not right for legal writing.

So right click on the Style you want to change, choose “Modify,” and set it up the way you want: choose a font, click Format then Paragraph and set the line spacing (double, single), and then set the paragraph spacing (probably zero). Tell it to automatically indent one tab for each new paragraph. Or don’t; you can still do it manually. For the Heading Styles, do the same but apply boldface or italics. To keep these new Styles, click the button for “New documents based on this template.”

Once you’ve made your Style choices, create your document by typing and, as you go or during revision, apply your Styles. To apply a Style to any piece of text, select the text, or place your cursor in the text, and choose the appropriate Style.

Three reasons to use Styles

First, you’ll get consistent formatting. All your headings at the same level will look the same, all your lists will look the same, all your block quotations will look the same, and so on. Naturally, you’re aiming for consistency already, but Styles make consistency easier. For a block quotation, instead of indenting left and right and converting to single spacing, just type (or paste in) the text and click the Style for Block Quotation. Done. Universal changes are easy, too. To change all your first-level headings from bold italics to bold, you don’t find and re-format each one. Instead, modify the Heading 1 Style from bold italics to bold, and the format changes occur automatically.

Second, with Styles for headings, you can use the Navigation Pane. To see it, go to the View tab. In the Show section, check the box for Navigation Pane. It appears on the left and displays an outline, pulling the entries from your Styles Headings. The entries in the outline are click-able, allowing you to move around easily in a large document—like a 40-page brief or a 60-page contract.

Third, using Styles enables you to create a Table of Contents in seconds. Go to the References tab, click on Table of Contents, and choose Custom Table of Contents (near the bottom). Word will generate a table of contents from the Styles headings in your document—correct page numbers and all. You can adjust the settings: How many heading levels do you want displayed? Do you want the entries to be hyperlinked? And so on. If you make any changes later, right click on the table of contents and Update Field to update the headings and the page numbers.

I’ll admit that it took me a while to master the Styles function and to see the benefits, but ultimately it was worth it. I now save time when I create and modify documents, and producing a table of contents in 10 seconds is wonderful. So it might take a while to master the Styles function, but the effort will pay off in time and headaches saved.

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

Singular “they”

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

It’s catching on, even in legal writing.

Can we use the plural pronoun they to refer to a singular person whose gender is unspecified? Can we do this:

The buyer might change their mind.
Every vehicle owner must have their vehicle inspected annually.
Always keep the reader in mind and try to meet their expectations.

Well, in speech and informal writing, many of us are already using this “singular they.” The singular pronouns in English—she, her, hers and he, him, his—are gendered, and if you don’t know the gender of the unspecified antecedent (buyer, owner, reader), you don’t know what pronoun to use, so we use they.

You could default to he, him, his. But there’s broad agreement that doing so is sexist, and many careful writers avoid defaulting to male pronouns for that reason. Still, using male pronouns for gender-unspecified antecedents is an established convention and one that some legal writers follow.

You could switch to the female, she, her, hers, and some writers do. That convention isn’t as common in legal writing, and because it isn’t common, it might attract more attention than you want.

You could use he or she or he/she each time. These pairs are entirely appropriate in formal legal writing, and they’re used regularly. For me, they can become tedious and distracting after a while, but they’re acceptable. By the way, a case-law search turned up a few instances of s/he, which, although used in other genres, still isn’t common in legal writing.

If those options don’t appeal to you, what should you do in formal legal writing? Two suggestions.

First, you can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. Some examples—

Pluralize—then the plural pronoun works just fine:

All vehicle owners must have their vehicles inspected annually.
Always keep your readers in mind and try to meet their expectations.

Repeat—being careful about potentially distracting repetition:

Every vehicle owner must have the owner’s vehicle inspected annually.
Always keep the reader in mind and try to meet the reader’s expectations.

Rephrase—to avoid the need for a pronoun:

The buyer might have a change of mind.
Every vehicle owner must have the vehicle inspected annually.

In my own writing, I’ve found that these three techniques work well.

Second, you could jump on the “singular they” bandwagon. That’s the position of two authors of a Michigan Bar Journal article called, “Evolving They.”[1] Brad Charles, a legal-writing professor, and Thomas Myers, a Michigan Supreme Court staff attorney, say the time has come to embrace the singular they: “More and more writing experts and guides are trumpeting that the once-plural-only pronoun may now be used as a singular pronoun .…”[2]

The authors cite as some of the trumpeting sources The American Dialect Society, The Washington Post’s style guide, and the AP Stylebook—which allows the singular they in “limited cases.”[3] The authors also note that Justice Sonia Sotomayor used a singular they in her majority opinion in Lockhart v. Unites States from 2016: “Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.”[4]

What do I do? I still write around the problem in formal documents, and I tell my students to check with their supervisor and then do what the supervisor says.

Finally, Charles and Myers encourage legal writers to respect a person’s preferred pronouns, acknowledging that some prefer they, them, their to the gendered pronouns. I encourage legal writers to respect those preferences, too.

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

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[1] Brad Charles & Thomas Myers, Evolving They, 98 Mich. B.J. 38 (June 2019).

[2] Id. at 38.

[3] Id. at 39.

[4] Lockhart v. United States, 136 S. Ct. 958, 966 (2016).