Commandment #3--Grammar, Nominalizations, Serial Commas etc.

Commandment #3—Thou shalt follow writing and grammar rules; avoid contractions, legalese, nominalizations, and passive voice; and use a serial comma

Grammar and writing rules
You should strive to follow general principles of good writing and use proper grammar. I know this seems like a no-brainer, but you’d be surprised how many briefs contain sentences that lack subject-verb agreement, contain a misplaced modifier, or include a comma splice. These sentences have very different meanings:

The victim picked just the defendant out of a lineup.

The victim just picked the defendant out in a lineup.

Lawyers are frequently under time-pressure (albeit often self-imposed) to complete briefs and filings and don’t check closely for writing and grammar errors. Good legal writers proofread carefully for these types of mistakes. If you lack an understanding of good grammar rules or could stand to brush up on your skills, consider a program like Core Grammar for Lawyers^SM. Core Grammar provides lessons tailored for lawyers on topics such as commas and sentence structure, quotations, and subject-verb agreement.

Contractions
Admittedly, there’s a dispute among legal writing professionals about whether writers should use contractions in formal writing. With the plain language movement, more people think contractions are acceptable. But many still believe contractions are too informal for documents filed with a court. Unless you know your judge is contraction-friendly, I’d avoid using them. You should feel free, however, to include contractions in less formal writing, such as client letters and correspondence with opposing counsel.

Legalese
There’s no need for legalese. The use of legalese does not—in any way—improve the quality of writing. If anything, it makes legal writing more difficult to understand. COMES NOW…is unnecessary. WHEREFORE…is also unnecessary. HEREINBEFORE…ugh. What does ipso facto mean? It means “because”—so why not say “because?” Work to cut legalese from your writing.

Nominalizations
Lawyers—and writers in general—use too many nominalizations. A writer creates a nominalization by turning a verb into a noun. Many (but not all) nominalizations end in –ion, -ment, or -ence. Let’s take an example.

The detective made an investigation into the victim’s claims.

The detective investigated the victim’s claims.

“Investigation” in the first sentence is a nominalization that—as most nominalizations do—adds  length and reduces clarity. Besides increasing the strength of your writing, cutting nominalizations has another practical value—it will help you comply with those pesky page and word limits! The second sentence is 33% shorter than the first.

Passive voice
Like nominalizations, passive voice often obscures meaning and adds length. Passive voice is a bit hard to define. In a sentence in active voice, the subject is doing an action. Put most simply, in a passive sentence, the subject is being acted upon.  Consider these two sentences:

The plaintiff slipped on the water.

The water was slipped on by the plaintiff.

You generally should avoid passive voice; however, passive voice can be useful if you do not know the actor or if you want to minimize the actor’s conduct. For example:

The documents were destroyed.

This sentence makes no mention of who destroyed the documents and sounds much better than:

My client destroyed the documents.

Learn to recognize passive voice and use it sparingly and strategically.

Serial comma
Why use a serial comma? There’s no reason not to! A serial, or Oxford comma, is the comma before the “and” in a series: lions, tigers, and bears.

In most cases, the decision not to use a serial comma is of no consequence.  When I say “lions, tigers and bears,” you know I am talking about three distinct animals. But the better practice, for purposes of legal writing, is to use a serial comma to avoid ambiguity.  For example:

This semester, students will be expected to turn in papers on the following topics: law and religion, race-based admissions policies, the Due Process clause and the death penalty in America.

How many topics are listed in the sentence above?  Four—(1) law and religion; (2) race-based admissions policies; (3) the Due Process Clause; and (4) the death penalty?  Or is it three—(1) law and religion; (2) race-based admissions policies; and (3) the Due Process Clause and the death penalty?

Many courts have been called on to analyze the meaning of documents containing, and lacking, serial commas. Telenor Mobile Commc'ns AS v. Storm, LLC, 587 F. Supp. 2d 594, 607 (S.D.N.Y. 2008) (noting that “the omission of the serial comma in the Shareholders Agreement definition of ‘control’ accounts for much, if not all, of the confusion here”); Commonwealth v. Silva, 488 N.E.2d 34, 36 (Mass. App. Ct. 1986) (interpreting cocaine trafficking statute that provides greater penalties for “manufacturing, distributing or dispensing…twenty eight grams or more of cocaine….”).

I can’t guarantee that your sentence will be unambiguous if you use a serial comma, but I can guarantee that the number and descriptions of items in a list will be clear.

Follow these good practices to improve your writing.