Monday, February 10, 2014

Commandment #1--Be Clear

Commandment #1--Thou shalt strive to be as clear as possible.

In many ways, the outcome of each of the commandments is clear writing--whether you're using an introduction to give the reader a roadmap, performing a strong legal analysis, or minimizing the use of nominalizations or passive voice, you're doing so to make your writing as clear as possible. The additional tips in this commandment will help you polish your writing further.

Don't use fancy, esoteric words. Good legal writing isn’t about displaying your knowledge of SAT words. Don’t make your reader work too hard to figure out what you are trying to say. If you force your reader to consult a dictionary, you’ve distracted the reader from the substance of your argument. After a court’s directive to file future submissions in “plain, simple English, devoid of any rhetorical flourishes,” a lawyer submitted these sentences in response to a motion to dismiss:

The mise en scene of these proceedings emanates from a background of Machiavellian intrigue, cunning deception, and sensational double entendre. Essentially, it is a text book example of myopic greed and clandestine chicanery designed and intended to conceal from respondents' knowledge a pre-existing business relationship between the movant and others....”

Kochisarli v. Tenoso, No. 02-CV-4320 DRH/MLO, 2006 WL 721509, at *6 (E.D.N.Y. Mar. 21, 2006).

This response went over about as well as you might expect: “[I]t is difficult to have a serious discussion of Counter-claimants' legal arguments here.” Id. Don’t be like this lawyer.

Aid readability by keeping most of your sentences short--30 words or less. Keep paragraphs on the shorter side as well. A three- to five-sentence paragraph is a good length. You can even use a single-sentence paragraph to make an important point.

And avoid excessive use of acronyms. Of course, you shouldn’t hesitate to use commonly recognized acronyms (e.g., FBI). But acronyms tend to "obscure, certainly in the reader's mind and sometimes even in the writer's, the underlying reality of a case, and the legal issues on which it must turn.”  Nat’l Paint & Coatings Ass’n, Inc. v. South Coast Air Quality Mgmt. Dist., 100 Cal. Rptr. 3d 35, 37 n.1 (Cal. Ct. App. 2009). And acronyms do not aid reading comprehension. Consider this sentence:

In their request, the legislators cited “serious concerns” regarding whether the AQCC's and the PUC's analysis and approval of the SIP amendments were conducted in accordance with the agencies' duties under the APA.

Colorado Mining Ass’n v. Urbina, No. 12CA1648, ---P.3d---, 2013 WL 6118417, at *3 (Colo. App. Nov. 21, 2013). 

Acronyms also depersonalize the parties. Imagine you represent three defendants, America’s United Bank, America’s United Bank Holding Company, and America’s United Bank Mortgage Corporation, which foreclosed on a home owned by an elderly woman, Elsie Copeland, whose husband died the previous year.  While the law might be on your clients’ side, sympathy is not.  And you’re not going to help the situation by referring to the entities by impersonal acronyms—AUB, AUBHC, and AUBMC. Instead, you could collectively refer to the defendants as the "Mortgagor" or "American" and refer to Elsie Copeland as "Mortgagee" or "Copeland."
Use these tips, and those offered in Commandments 2 through 10, to improve your legal writing.

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