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).

And you think legal writing is bad?

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

Operations within the Sector Franchise Fund were impacted by the June 20, 2018, AS-PTT Memorandum, Customer Approval Process for the Sector Business Center, directing AOD to divest external customers, as well as the review and denial of particular requests for assisted acquisition support from external customers including the planned divestiture of AOD’s 5 largest customers: TARCA, CARCA, TICOM, VCDo, and DOTS&R.

In response to the AS-PTT direction and review process, AOD did not conduct its usual business development efforts, existing customers were confused by the approval process and lost confidence in AOD’s ability to continue to perform assisted acquisition support for external customers, AOD’s hiring freeze led to 40 departures which have not been backfilled impacting the ability to seek and perform new work and certain existing customers did not send additional work to AOD.

Overall, FY 2018 AOD actions decreased 9% and obligations decreased 22.5% over FY 2017 and Quarter 3 and 4 revenue within the EFFL represented a $16.8M decrease in FY 2018 compared to FY 2017. Disapproval of requested acquisition support led to a direct loss of $5.1-$5.9M (Tab A) in revenue for AOD. Additional revenue was likely lost due to existing and potential customers not reaching out to AOD for support as rumors that AOD would no longer be servicing external customers circulated in the shared service community. As a result, AOD generated less revenue than projected, expenses slightly exceeded revenue, the EFFL Annual Reserve was funded below optimal levels and AOD did not generate enough revenue to contribute to the Sector Franchise Fund Capital Improvement Reserve.

  • Average sentence length = 43 words
  • Flesch Reading Ease Score = 0.0 (scale of 0-100 with 60 being “plain”)
  • Flesch-Kincaid Grade Level = 24 (high school plus 12 years of education)
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

The passive voice … is used by lawyers.

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

The passive voice is frequently censured and widely condemned. Why is so much bad press received by the passive voice? Oops. Why does the passive voice receive so much bad press?

Lawyers overuse it, and its overuse makes for wordy, dull writing.

Quick review: The passive voice relies on a be verb (most commonly was, were, and been) plus a past-tense verb (technically past participle). All the following are in the passive voice (be verb and past-tense verb in italics):

  • Mistakes were made.
  • The contract was signed.
  • The DNA has been collected.

By the way, a sentence like The statute is applicable might be undesirable (I’d prefer The statute applies) but it’s not in the passive voice. Yes, it has a be verb (is), but applicable isn’t a verb.

In the examples, we can see a key feature of the passive voice: The doer of the verb is not the subject of the sentence. In fact, the doer of the verb is missing from the sentence entirely. Mistakes were made. Who made them? We don’t know. We can put the doer of the verb into a passive-voice sentence, but we have to attach the doer with a prepositional phrase at the end:

  • Mistakes were made by my staff.
  • The contract was signed by Christina Duran.
  • The DNA has been collected by Officer Kiser.

In the active voice, these sentences would be more vigorous and more concise:

  • My staff made mistakes.
  • Christina Duran signed the contract.
  • Officer Kiser has collected the DNA.

Now we can explain the bad press. When we overuse the passive voice in legal writing, we produce dull prose two ways: We rob the writing of doers, of actors, of action. Stuff just happens—no one does it. Or we name the doers, but they’re tacked on at the end—something was done by someone. That’s wordy.

Hiding the doer and producing wordy prose can be bad things in legal writing, and the experts agree:

“The passive voice results in a wordier sentence … and often obscures the actor.”1

“The passive voice creates two problems. It uses more words than active voice, and it risks creating ambiguity.”2

“Generally, prefer the active voice over the passive voice for several reasons: It is more concise.… It uses a more vigorous verb.”3

But we don’t forbid all passive-voice constructions; the passive voice has legitimate uses, and here are three.

  1. 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. The focus is on the recipient of the action, and the doer of the action is unimportant. Treyco’s account was frozen, not Mercury’s account. This sentence focuses on which account was frozen, not on who did the freezing.
  3. The appearance of responsibility is being avoided. The emails have 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 avoid responsibility a lot, your readers will figure it out.

So the passive voice isn’t wrong; it has legitimate uses in legal writing. It is overused by lawyers (passive). Lawyers overuse it (active). So when you edit your writing, check for passive-voice constructions—maybe do a search for was and were. When you spot the passive voice, ask yourself, “Do I need the passive voice here?” If you don’t, the active voice will be more vigorous and more concise.

Wayne Schiess’s books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.

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1. Bryan A. Garner, Garner’s Dictionary of Legal Usage 659 (3d ed. 2011).

2. Richard C. Wydick & Amy E. Sloan, Plain English for Lawyers 29 (6th ed. 2019).

3. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook 514-15 (5th ed. 2010).