Student Essay: Mistakes Matter

Mistakes Matter

By Belinda Schwertner

“Mistakes don’t matter” was not a phrase overheard in my first-year writing course at The University of Texas School of Law. But, in Bryan A. Garner’s 2014 ABA Journal article, A Tale of 2 Associates: How Polish and Attention to Detail Can Win the Motion, Jim, a fourth-year associate, tries to convince Denise, a second-year associate with whom he is collaborating on a motion, that mistakes are acceptable. Jim contends that minor grammatical errors are not consequential to legal writing if those mistakes are small and the writing’s meaning is clear. After some coaxing, Jim reluctantly allows Denise carte blanche to edit the motion. Denise’s careful editing helps them win the motion and convinces Jim that correcting mistakes in legal writing is worth the effort.

One question that Garner’s article invites is why Jim is hesitant to accept Denise’s help polishing his motion. Jim believes that editing for grammatical mistakes wastes both time and money. Jim reasoned that he had previously had several successful hearings with this judge without them mentioning any shortcomings in his writings. However, Jim underestimates how grammatical mistakes can take away from the substance of legal writing. Grammatical errors in legal writing can cause the reader to pause to understand the writer’s meaning—the reader’s attention span shortens while their negative perception of the writing increases. Although mediocre writing can be effective, writers should not unnecessarily burden readers with careless errors.

Another explanation for Jim’s reluctance to accept Denise’s help could be an unfounded belief that first- and second-year associates are less-skilled writers. Having more experience, Jim might believe he is a better writer (although Denise’s editing skills are superior). Perhaps Jim is unaware of nationwide advances in legal writing curriculums. Maybe Jim is too busy “working” to work on improving his writing skills. Most people dislike change; similarly, Jim might favor the status quo. However, Jim comes to appreciate that the “cost” of editing—one hour and five minutes of Denise’s time—is well worth the rewards received: their supervising partner’s praise and admiration and the judge’s acknowledgment of their well-written motion.

Bryan Garner’s tale illustrates several critical points about legal writing. For example, correcting grammatical errors can only improve substantive legal writing. A small investment of time in editing reaps huge rewards. Further, legal writers can enhance their skills incrementally, making the process less daunting. Resources available to legal writers today are vast, and many are accessible online and free. Frequently reading non-legal works, such as well-written prose and periodicals, can also improve one’s writing intelligence. Other lessons learned from Mr. Garner are that senior lawyers should not assume that just because a lawyer is their junior, they are not good legal writers. Also, people beyond the presiding judge will likely read legal writings. Impressions about a lawyer, and by extension, their firm, can be gleaned from the quality of their writing. Therefore, given the vast legal writing resources and the cost-benefit analysis of employing editing, most lawyers have no excuse not to write well. Finally, it is never too late to learn.

Since writing is what lawyers spend most of their time doing, lawyers should take steps to improve the quality of their legal writing. Law schools continuously strive to improve their legal writing curriculum. And, despite anecdotal evidence to the contrary, law students are not hopeless in their legal writing endeavors. Moreover, lawyers are prone to the cognitive bias of illusory superiority, where a person overestimates their qualities and abilities in relation to the same qualities and abilities in other people. If a lawyer harbors this cognitive bias, awareness of it might allow them to be more receptive to learning techniques that could improve their legal writing.

Another way that lawyers could enhance the quality of their legal writing would be for each state’s bar association to require coursework on legal writing as part of continuing legal education (CLE). Currently, Texas requires licensed attorneys to complete fifteen hours of CLE yearly, three of which are ethics requirements. It is not beyond reason to mandate CLE in legal writing because writing is a core skill of the legal profession. The American Bar Association’s Model Rules of Professional Conduct states in the comment section of Rule 1.3 (Diligence) that “a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Indeed, the requirement of zealous advocacy necessitates an attorney’s need to present only their best-written work.

Not all lawyers possess the same level of writing intelligence, but most lawyers can improve their writing skills with little effort. There should be no excuse for, or acceptance of, simple errors in legal writing. In 2022, spell check is not hard to use. Mistakes in legal writing are like a near miss in aviation. Even though passengers ultimately make it to their destination without injury, the journey might have been harrowing for them. Similarly, a judge may grant a poorly written motion, but at what cost to the reader and the writer’s reputation? Lawyers are known for their incredible attention to detail. Still, grammatical mistakes in legal writing can cause the reader to believe that the analysis and reasoning of the author are unsound, even though they might not be.

There is almost always room for improvement in legal writing. Most lawyers can learn to improve their legal writing through patience and practice. Also, if legal writers are diligent in correcting their grammatical errors, they will eventually require less time for editing as their writing skills evolve. Good legal writing can be powerful. The time an attorney spends editing often translates to real-world positive results. Just ask Jim.

Readable Contracts Part 3

Readability, grade level, and sentence length

This is part 3 of a series discussing the study, “Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,”[1] in which the authors compared contract language with everyday written English. I was able to contact the authors and access the corpora they used, and I conducted my own assessments. (Note: the corpus of contracts I used had 837,000 words; the corpus of everyday written English had more than a million words.)

I assessed the text for average sentence length, Flesch Reading Ease, and Flesch-Kincaid Grade Level, and also included those averages from my last 10 columns that have appeared here. The results:

These results support the conclusions of the original study’s authors, but I’ll say a bit more about them here.

 

 

 

Avg. Sentence Length

Flesch Reading Ease

Flesch- Kincaid Grade

Everyday written language

 17 56 9

Contract language

 42 20 19

Schiess’s last 10 columns

 17 52 10

Average sentence length

The average for the everyday English—17 words—is short but typical: everyday-English sentences average 15 to 20 words. This corpus included blogs, web pages, and TV and movie scripts, so the low number makes sense.

The 42-word average for the contracts is, well, huge. As I pointed out last month, these are commercial contracts entered by sophisticated parties represented by counsel, so the long sentences aren’t as troubling as they might be if the contracts were apartment leases, credit-card agreements, or software-user agreements.

The 42-word average means that there are some really long sentences, and even experienced transactional lawyers might find reading those long sentences difficult.

Flesch Reading Ease

This formula, included in Microsoft Word, was finalized in 1948 by Rudolf Flesch, an Austrian lawyer who fled the Nazis in 1938 and earned a Ph.D. in education in the United States. It assesses the number of syllables and sentences per each 100 words and uses that assessment to produce a score from 0 to 100: 30 is difficult, and 60 is plain English.[2]

At 56, the everyday English text comes close to Flesch’s standard for plain English—as it should. And as we might have predicted, the Reading Ease score for the contract language is low—what Flesch labels “very difficult.”[3] The long average sentence length doubtless contributes to this low score, but the average number of syllables per word surely does, too.

Flesch-Kincaid Grade Level

This scoring system was derived from the Flesch Reading Ease score by J.P. Kincaid[4] and reports the number of years of formal education a reader needs in order to understand the text. The everyday English scored a 9, meaning one who has completed the ninth grade should be able to read and understand it. My own writing—which is mostly about writing—tends to hover around the tenth-grade level.

The Flesch-Kincaid grade level for the contract language is high at 19, although I once read a decision from an administrative-hearing appeal that scored a 20. But grade level 19 is, unsurprisingly, the equivalent of a reader with a high-school education (12), a college degree (16), and a law degree (19).

Thus, the grade level is appropriate given the context: these contracts were prepared by and for attorneys.

Recommendations

Still, the 42-word average sentence length is taxing at best and on the border of impenetrable. Anything we can do to reduce that average will make the contract easier to read and understand and, therefore, easier to draft, easier to review, and easier to explain to the client.

Next month: a report of additional findings based on the two corpora.

_____

[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

[2] William H. DuBay, Smart Language: Readers, Readability, and the Grading of Text 56 (2007); Rudolf Flesch, How to Write Plain English 25 (1979).

[3] Flesch, How to Write Plain English at 25.

[4] DuBay, Smart Language at 90-91.

Readable Contracts, part 2

Three more findings—with advice

This is part 2 of a series discussing the findings of a study, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language,[1] in which the authors compared contract language with everyday written English. Here are three more findings: Contract language has higher frequencies of—

  • center-embedded sentence structure
  • words used rarely in everyday English
  • words with a higher-frequency synonym (fancy words that could’ve been simpler)

Center embedding means inserting a phrase or clause within another phrase or clause. Here’s an example from the authors:

In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the “Total Payments”), would be subject to excise tax, then the cash severance payments shall be reduced.[2]

In a sentence of 47 words, placing another clause of 22 words in the middle makes for difficult reading. An easy fix is to place the embedded definition clause in a separate sentence:

In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All such payments and benefits, including the payments and benefits under Section 3(a) hereof, are hereinafter referred to as the “Total Payments.”

Now we approach a thornier topic: Even without this study, any lawyer and anyone who has read a contract could’ve told you that contracts use words that are rare in everyday English as well as words that have simpler or more-readable synonyms. But is that a problem?

On this topic, I won’t offer recommendations for using shorter or simpler words in contracts. Yes, doing so could make contracts more readable, but I’ll propose three reasons that doing so might not be ideal.

  1. The studied contracts were commercial contracts entered by sophisticated parties represented by counsel.

In my review of the contracts in the corpus, I didn’t see a single consumer contract: apartment lease, credit-card agreement, software-user agreement, car insurance.

So the studied contracts don’t necessarily need to be read and understood by someone without legal training. For the contracts in the corpus, those who need to read and understand the language are lawyers, and those lawyers—we hope—can explain the contract language to those who need to understand it.

  1. Contracts contain some legal terms that either cannot or should not be simplified.

Yes, contracts use words and phrases unique to legal language or with a different meaning from the everyday-English meaning. But replacing those words and phrases to enhance readability could introduce risk, or it could require the drafter to use even more words to explain what the legal term means.

But note: the number of terms of art or unique legal terms is fairly small—smaller than some legal drafters claim. In one study, only 3% of the words found in a standard real-estate-purchase agreement had ever been construed or defined by a court.[3]

  1. Revising lengthy, complex contracts for readability might not be cost effective.

Given that the commercial contracts in the study were prepared by, reviewed by, and could (I assume) be explained by transactional lawyers, how would we justify the cost of revising them? We’d need to replace rare words with everyday words and replace or explain legal terms. Who’s going to pay for it?

These contracts were certainly based on forms or precedents from previous transactions, a practice that saves time and money. Add to that fact the reality that very few contracts result in “disputes” (as high as 9% according to one commercial source[4]) and that even fewer end up in litigation (fewer than 0.1% by one estimate[5]).

Next month: my own findings based on the corpora from the study.

__________

[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

[2] Id. at

[3] Benson Barr, George Hathaway, Nancy Omichinski, & Diana Pratt, Legalese and the Myth of Case Precedent, 64 Mich. Bar. J. 1136, 1137 (Oct. 1985).

[4] Contract Assistant, Not Good: Average of 9 Percent of Contracts Result in Dispute, https://contractassistant.com/​not-good-9-percent-of-contracts-result-in-dispute/ (accessed June 23, 2022).

[5] Id.

Readable contracts Part 1

ALL CAPS and passive voice

This is part 1 of a series on contract drafting; I’ll report on a study of contract language and offer comments and recommendations. The study is Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language.[1]

The three authors (two linguists and a lawyer/linguist) used corpus analysis to discover why contract language “remains notoriously inaccessible” to nonlawyers. They asked which of these two causes could account for the difficulty:

  • Is it the specialized and complex content?
  • Is it the form of expression—the way contracts are written?

They compared a corpus (think “database”) of contracts with a corpus of standard English—newspapers, magazines, blogs, web pages, and TV and movie scripts. The two corpora[2] contained more than 10 million words, and the authors assessed five variables: frequency of all caps, frequency of passive voice, frequency of center-embedded sentence structure, frequency of everyday words, and frequency of words with a higher-frequency synonym (fancy words that could’ve been simple).

The authors found that “all of the metrics we looked at were prevalent to a greater degree in contracts than in the standard-English corpus.”[3] Let’s start with the first two variables: contracts use all caps and passive voice more than everyday writing.

I’m not surprised that contracts use more all caps than other writing, but the questions is, why? Typically, all caps are used to draw attention, to make text conspicuous and noticeable. In fact, there are Texas statutes that require certain contract language to be “conspicuous.”[4] But those statutes don’t expressly require all-capitals text. For example, here’s one definition of conspicuousness: “Required information in a document is conspicuous if the font used for the information is capitalized, boldfaced, italicized, or underlined or is larger or of a different color than the remainder of the document.”[5]

So all caps is one option, but not the only one, although I did find two Texas regulations requiring all-caps.[6]

Still, the question remains: why does all-capitals text persist in contracts? Three possible reasons and a recommendation: First, all-caps is a vestige of the typewriter, which couldn’t produce boldface or italics, so some form contracts retain all-caps because they’ve never been updated. Second, all caps really do stand out if the rest of the contract is in regular type. Third, some lawyers mistakenly assume that statutes require all caps for conspicuousness; but although some statutes mention all-caps, they almost always give other options. (See the example quoted above.)

Recommendation: Convert all-caps to boldface—and maybe even increase the font size. Blocks of all-caps text are difficult to read[7] and are nowadays perceived as shouting.

Why do contracts have more passive voice than other ordinary writing? Two possible reasons: Passive voice is preserved because “it’s in the form.” Many contract drafters are wary of changing form language, especially if that form was the basis for numerous contracts that have closed and been performed without a glitch.

And passive-voice just sounds more formal—more lawyerly. But if that’s a source of excessive passive voice, we can let it go. Consider these examples of passive voice that are clearer in the active:

1. Permits must be secured before work commences.

  • By whom? Better in active voice:

1a. The owner or contractor must secure permits before work commences.

2. The Purchase Price shall be paid by wire transfer of immediately available funds.

  • Certainly, the buyer’s obligation to pay the Purchase Price was stated earlier in the contract, but I still prefer this active-voice version:

2a. The Buyer shall pay the Purchase Price by wire transfer of immediately available funds.

Next month: additional findings of the contract-language study.

_____

[1] Eric Martinez, Francis Mollica, & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, Cognition 224 (2022).

[2] Yes, that’s the plural of “corpus,” which I had to look up,

[3] Poor Writing, Cognition 224, at 3.

[4] Tex. Bus. & Com. Code Ann. § 2.316.

[5] Tex. Bus. Orgs. Code Ann. § 1.005

[6] 7 Tex. Admin. Code § 84.808; 16 Tex. Admin. Code § 22.71.

[7] Matthew Butterick, all caps, Butterick’s Practical Typography, https://practicaltypography.com/all-caps.html (last visited June 1, 2022).

Saving Commas

Three uses to preserve

I read a lot of legal writing, and I’ve begun to notice a decrease in three particular comma uses. Although I mostly read law-student writing, I’ve noticed these missing commas in some lawyer-written documents as well. (I should mention that I don’t believe that the writing skills of law students and young lawyers are in decline, and I’ll have more to say about that in another column.) In this column, I describe the three comma uses and advocate for saving those three commas.

1. Comma after introductory transition word

In professional writing, we generally place a comma after a sentence-beginning transition word. These words are also call “conjunctive adverbs.” They’re well-known, multi-syllabic transitions, like these: accordingly, additionally, certainly, consequently, conversely, finally, furthermore, however, in addition, incidentally, likewise, meanwhile, moreover, nevertheless, nonetheless, similarly, subsequently, therefore, thus, undoubtedly. Examples:

Wrong: However Rei requests that the fee amount not be disclosed to the public.

  • Right: However, Rei requests that the fee amount not be disclosed to the public.

Wrong: Therefore the court rejected and dismissed all the petitions before it.

  • Right: Therefore, the court rejected and dismissed all the petitions before it.

Wrong: Furthermore the illegal transaction occurred at Anton’s home.

  • Right: Furthermore, the illegal transaction occurred at Anton’s home.

This comma sometimes goes missing. Maybe writers are aiming for speedy reading or better flow and are thinking that a comma will slow things down. (It can be appropriate to omit the comma after an opening thus.) But the decreased use might also be occurring because writers are forgetting the rule. Let’s save this comma.

2. Comma after introductory dependent clause

We should also place a comma after a sentence-beginning dependent clause. As a refresher, a clause is a group of words that has a subject and a verb. For this rule, we’re talking about dependent clauses, also called subordinate clauses: they have a subject and a verb, but they’re not independent clauses—they’re not complete sentences by themselves. Examples:

Wrong: Although both covenants began when the employment began they extended for different time periods.

  • Right: Although both covenants began when the employment began, they extended for different time periods.

Wrong: If the conduct occurred in the scope of representation then the conduct is shielded.

  • Right: If the conduct occurred in the scope of representation, then the conduct is shielded.

Wrong: Unless the court grants the petition for rehearing the original opinion is likely to stand.

  • Right: Unless the court grants the petition for rehearing, the original opinion is likely to stand.

This comma is sometimes omitted. For this comma, I’m less inclined to think it’s about flow and more inclined to attribute the decreased use to forgetfulness or hasty editing. But its absence can cause miscues and impose re-reading. Let’s save this comma.

3. Comma before and after appositives

An appositive restates or renames a noun it follows, and here we’re technically talking about a nonrestrictive appositive—which requires a pair of commas. Examples:

Wrong: The defendant, Chris Lang did not hire a lawyer.

  • Right: The defendant, Chris Lang, did not hire a lawyer.

Wrong: The vehicle in question, a red convertible with Louisiana plates was seen leaving the parking lot.

  • Right: The vehicle in question, a red convertible with Louisiana plates, was seen leaving the parking lot.

Wrong: Jamie Khatri, the company’s chief technology officer flew to Austin for the meeting.

  • Right: Jamie Khatri, the company’s chief technology officer, flew to Austin for the meeting.

For clarity and precision, we need both commas. Again, I suspect that the decreased use arises from hasty editing—not from a change in the rule that applies in some other genre of writing such as literature, journalism, or college essays. Let’s save this comma.

You can help by retaining these three commas in your own writing. And if you’re invited to edit or comment on someone else’s writing, you can encourage the use of these commas—kindly and warmly, of course.