Over-simplified writing advice, 2

Part 2 of 4

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

I recently read some writing advice offered by a capable lawyer with 10 years’ experience. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice with my own take.

“Never use pronouns.”

You can’t follow this advice literally. It’s not possible to write a memo or motion or brief and never use a pronoun.[1] Well, maybe it’s possible, but you’d end up with awful, stilted-sounding prose.

So this (4 pronouns, including 1 possessive pronoun):

  • Kessler argues that under section 101.001, she is entitled to reinstatement to her former position, to the wages she lost, and to reinstatement of seniority rights she had earned.

would have to be re-written like this (no pronouns):

  • Kessler argues that under section 101.001, Kessler is entitled to reinstatement to Kessler’s former position, to the wages Kessler lost, and to reinstatement of seniority rights Kessler had earned.

No one should write like that.

Based on the examples the lawyer gave, what was meant was probably something more like don’t over-rely on pronouns. But for a sophisticated legal writer, even that advice is too simple. I’d offer something more like ensure that each pronoun has a clear and unambiguous referent (antecedent).

In the following example, the pronoun this is vague.

  • The court held that section 101.001 does not apply. This means Kessler cannot rely on section 101.001.

It’s not clear what “this” refers to. But we can clarify by adding a noun that the word this points to (this, that, these, and those are demonstrative pronouns, which some experts call “pointing words”):

  • The court held that section 101.001 does not apply. This holding means Kessler cannot rely on section 101.001.

In the following example, the pronoun she is ambiguous:

  • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when the time for the meeting arrived, she did not show up.

“She” could refer to Ms. Gilmer or Officer Kara Lopez. To clarify the meaning, we can replace the pronoun with a proper noun:

  • Ms. Gilmer and Officer Kara Lopez arranged a meeting to discuss the case, but when the time for the meeting arrived, Officer Lopez did not show up.

or we can rewrite the sentence to avoid ambiguity:

  • Ms. Gilmer did not show up for a meeting she had arranged with Officer Kara Lopez to discuss the case.

My view is that for high-caliber, sophisticated legal writing, absolute prohibitions aren’t the best advice. Inform yourself about the advice, consider your audience and purpose, and exercise your editorial judgment.

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

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[1] In fact, in an example legal document the lawyer displayed for another purpose, there were four pronouns in the first three sentences. All four pronouns uses were appropriate and precise; I’m just pointing out that it’s not reasonable to advise, “Never use pronouns.”

Over-simplified writing advice, 1

Part 1 of 4

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

I recently read some writing advice offered by a capable lawyer with 10 years’ experience. The advice was offered in absolute terms, and I thought it was oversimplified. Here’s the advice with my own take.

“Never use adverbs.”

You can’t follow this advice literally. It’s not possible to write a memo or motion or brief and never use an adverb.[1] Based on the examples the lawyer gave, what the lawyer probably meant was something more like avoid over-using adverbs. But for a sophisticated legal writer, even that advice is too simple. I’d offer something more like don’t overuse intensifiers and qualifiers in legal writing.

I’ve written about intensifiers (clearly, extremely, blatantly):

and a modified version of those three posts appeared in a Michigan Bar Journal article

I’ve also written about using qualifiers (probably, somewhat, typically):

My view is that for high-caliber, sophisticated legal writing, absolute prohibitions aren’t the best advice. Inform yourself about the advice, consider your audience and purpose, and exercise your editorial judgment.

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

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[1] In fact, in an example legal document the lawyer displayed for some other point, there were three adverbs in the first four sentences. All three uses were appropriate; I’m just pointing out that it’s not reasonable to advise, “Never use adverbs.”

Emotional language in briefs

You can’t avoid it entirely; but try to reduce it.

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

It’s common sense that overtly emotional language is ineffective in persuading judges. The experts say so:

  • “Judges are innately skeptical about appeals to emotion.”[1]
  • “Do not use emotional rhetoric…”[2]
  • It typically won’t “play well” to engage in “a blatant appeal to sympathy or other emotions…. Before judges, such an appeal should be avoided.”[3]

A recent research article supports that advice. The authors, three linguists and a lawyer, assert that judges “respond to briefs that are less emotional … because they convey more credibility.”[4] The article, The Role of Emotional Language in Briefs Before the U.S. Supreme Court, was published in 2016. In it, the authors calculated the rates for “emotional language” in the briefs and “analyzed how each Supreme Court Justice voted in 1,677 orally argued cases decided during the Court’s 1984-2007 terms, … focus[ing] on cases that included only a single initial merits brief submitted by each party.”[5]

In calculating the rates, the authors relied on a list of 919 words and word stems that experts deem “emotional.” To ensure that the results weren’t driven by other variables, they also attempted to control for the existence of lower-court dissenting opinions, the briefs’ use of legal authority, the quality of the attorneys writing the briefs, the parties’ status and resources, the presence of amicus briefs, the potential for “ideological congruence” between one party and a justice, and more.

The results aren’t surprising. The lower the rate of emotional language, the more likely the brief would get a justice’s vote:

  • “For petitioners, using minimal emotional language is associated with a 29% increase in their probability of capturing a justice’s vote. For respondents, … using minimal emotional language is associated with a 100% increase in their probability of winning a justice’s vote.”[6]

The authors don’t make strong causal claims, but the correlations offer significant support.

Applying the wisdom learned from this article can be tricky, though, and it’s because of the 919 words and word stems that are deemed “emotional.” I’ll show some examples of the listed words, and then offer some advice. (See the full article and word list here.)

Not every word in the list is overtly emotional. The following listed words are deemed “emotional” but are routine enough that they could easily appear in many persuasive legal documents:

  • active
  • advantage
  • alone
  • appreciate
  • assure

On the other hand, some listed words carry obvious emotional impact and are the kind legal writers might reduce or avoid in persuasive writing:

  • agony
  • appalling
  • arrogant
  • awesome
  • awful

Meanwhile, some words on the list have particular meanings within the law and could be difficult to avoid. Here five examples with a parenthetical filling out a common legal phrase:

  • abuse (of discretion)
  • accept (an offer)
  • adverse (party)
  • agree (to purchase)
  • award (damages)

And these examples are only from the letter A. Get the picture? You can’t simply adopt the authors’ list and systematically exclude those 919 words. Besides, the authors themselves acknowledge that not all emotional language can or should be eliminated.[7]

So my advice is to exercise editorial judgment. When you edit your persuasive writing, you know the topic you’re addressing and the stakes; you probably also have a sense of the judge’s temperament. Given that, in general, judges prefer writing that uses fewer emotional words, replace or delete those that are the most obviously emotional, but keep the routine and necessary legal terms.

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

[1] Stephen V. Armstrong & Timothy P. Terrel, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 289 (3d ed. 2009).

[2] Tessa L. Dysart, Hon. Leslie H. Southwick, & Hon. Ruggero J. Aldisert, Winning on Appeal 29 (3d ed. 2017).

[3] Antonin Scalia & Brian A. Garner, Making Your Case: The Art of Persuading Judges 31 (2008).

[4] Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, & Eve M. Ringsmuth, The Role of Emotional Language in Briefs before the U.S. Supreme Court, J. of Law and Courts 377, 384 (Fall 2016).

[5] Id. at 384.

[6] Id. at 378.

[7] Id. at 397.

Beginning with “but”

There’s no rule against beginning a sentence with but.

Sure, it’s a wise admonition from middle-school English teachers that novice writers avoid beginning a series of sentences with but.

  • In July we went to Six Flags. But it rained that day. But my mom said we could go again later. But by August, we didn’t have time. But I really wanted to go.

In high school, many English teachers embrace the beginning but. My son’s 9th-grade English teacher included “beginning with a conjunction” in a list of writing techniques, offering this example, But how could this be? and requiring students to create their own examples.

(By the way, you need no comma when you begin with but. Notice the examples in this post: no comma after but.)

What? Teaching kids it’s okay to begin a sentence with but? No wonder writing skills are in decline and college students (not to mention law students) don’t write well.

But wait.

I applaud this high-school teacher, and he’s in line with the general view of numerous writing authorities.

I’ve made this point before: Lite Connectors, Austin Lawyer 13 (Dec. 2008 / Jan. 2009). I won’t rehash the sources I quoted there, but I’ll refer you to Bryan A. Garner, On Beginning Sentences with But, Mich. B.J. 43 (Oct. 2003); The Chicago Manual of Style (“a perfectly proper word to open a sentence”); and the Internet, where a Google search for “beginning with but” turns up many reputable authorities recommending the practice.

As with many writing “rules,” the truth is that beginning with but isn’t about wrong or right; it’s about formality, emphasis, and style. So don’t uncritically apply this nonrule. Think about your writing goals and options and decide how you want to use the language.

Let’s start with formality. Although we should be comfortable beginning with but in e-mail messages, print correspondence, and inter-office memos, some lawyers avoid the practice in formal documents like motions, briefs, and judicial opinions. Yet the technique has been used in formal legal documents for centuries. Here are some examples.

From a judicial opinion in 2013:

  • “But this case has nothing to do with federalism.” City of Arlington v. FCC, 569 U.S. 290, 305 (2013).

From a judicial opinion in 1901:

  • “But this is not sufficient.” Colburn v. Grant, 181 U.S. 601, 607 (1901).

From a judicial opinion in 1793:

“But this redress goes only half way.” Chisholm v. Georgia, 2 U.S. 419, 422 (1793).

From an appellate brief in 2003:

  • “But the EPA cannot claim that ADEC’s decision was unreasoned.” Alaska Dept. of Envtl. Conservation v. EPA, 2003 WL 2010655 at 46 (U.S. Pet. Brief 2003).

And from the U.S. Constitution:

  • “But in all such Cases the Votes of both Houses shall be determined by yeas and Nays . . . .” U.S. Const. art. I, § 7.

In fact, the Constitution has seven sentences beginning with but.

If we accept that beginning with but is appropriate for formal legal documents, then it becomes a tool we can use to manage emphasis. Using the example from Arlington v. FCC, note the differing emphases in these three versions:

  1. But this case has nothing to do with federalism. (succinctly emphasizes the contrast)
  2. However, this case has nothing to do with federalism. (contrasts but moves more slowly)
  3. This case, however, has nothing to do with federalism. (even slower and emphasizes this case)

You can do more than use the technique for emphasis. Once you’re comfortable beginning with but, you can use it to create readable, crisp transitions that quickly orient the reader to a change of direction. For crisp transitions, yet is a great word to begin with, too.

From a judicial opinion in 1968:

  • “Yet we see no possible rational basis.” Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 75 (1968).

Yes, you can begin with however or in contrast or on the other hand. They’re fine. But now we know that beginning with but is fine for formal legal documents, gives us a tool for managing emphasis, and makes a great connector.

After all, there’s no rule against beginning a sentence with but.

A View of Seven Writing “Rules”

Based on 200 responses from people who teach legal writing:

It’s a rule
Sensible
suggestion
Mistaken
or misguided
Do not begin a sentence with but. 5% 26% 69%
Do not begin a sentence with and. 11% 28% 61%
Do not begin a sentence with however. 1% 22% 77%
Do not end a sentence with a preposition. 16% 37% 47%
Do not split an infinitive. 9% 32% 59%
Do not split a verb phrase. 2% 26% 72%
Do not separate a be verb from its complement. 3% 21% 76%

Here’s what I think:

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