Commandment #3—Thou shalt follow writing and grammar rules; avoid contractions, legalese, nominalizations, and passive voice; and use a serial comma
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 LawyersSM. Core Grammar
provides lessons tailored for lawyers on topics such as commas and sentence
structure, quotations, and subject-verb agreement.
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.
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.
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
The detective made an
investigation into the victim’s claims.
The detective investigated the
“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.
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:
plaintiff slipped on the water.
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
Learn to recognize passive voice and use it sparingly and strategically.
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
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.