Friday, June 24, 2016

The Road to Hell?

I believe it was Stephen King who once said: “The road to hell is paved with adverbs.” In legal writing, the same can be said for adjectives. I—like every other legal writing “expert” I know—caution against the use of adjectives and adverbs. The most effective legal writers don’t tell the reader: “This was a terrible accident”; they show the reader what made the accident terrible (The investigating officer described the accident as “the worse [he’d] seen in [his] 15 years of accident investigation.”). 

Paul Clement
But Paul Clement, former Solicitor General, one of the nation’s best Supreme Court advocates, and an excellent writer, uses adjectives and adverbs effectively for emphasis. Take the following from his brief on behalf of Allergan in Allergan v. United States, an important First Amendment case involving a dispute over drug companies’ ability to speak to physicians about off-label uses of their drugs:

When the Government starts picking favored speakers, First Amendment values are in grave danger.

The inclusion of the modifier “grave” takes the sentence up a notch—First Amendment free speech rights aren’t just in danger (which is bad enough)—they’re in grave danger (even worse!).

Clement uses other descriptors strategically throughout the Allergan brief with similar results:

“It is perfectly lawful for physicians to prescribe Botox® for [spasticity] and other off-label uses.”

The Government opens its brief by ominously warning that Allergan has launched a “sweeping assault” on the framework for new drug approval that the Kefauver-Harris Amendments to the FDCA established in 1962.

The Government also has studiously avoided taking a litigation position here that might bind either FDA or DOJ in the future. The Government never squarely states an official position that FDA’s regulations do not prohibit non-promotional speech...

The overbreadth problem posed by the Government’s expansive conception of “promotional” speech is particularly problematic because it infringes upon fully-protected speech.

First, the FDCA’s “new drug” and misbranding rules trigger First Amendment scrutiny because they are irretrievably content-based....

The Government has not come close to proving that FDA’s blanket suppression of off-label speech survives First Amendment scrutiny.

FDA’s indiscriminate prohibitions of off-label speech manifestly fail this test.

There is “no hint,” however, “that the Government even considered these or any other alternatives” before enacting its draconian regulations suppressing virtually all off-label speech.

It is thus not clear whether FDA ever had a coherent reason for suppressing virtually all off-label speech, or if this approach was less a conscious choice than an inadvertent byproduct of regulations aimed at mitigating other harms.

This is why FDA’s approval process is extremely rigorous.

The staggering breadth of the “intended use” regulations is also irrational in light of the legal and practical reality that off-label use is lawful and often necessary to appropriate patient care.

FDA has nonetheless chosen the route of censorship, completely prohibiting all forms of off-label advertisement, even where the advertised use is medically accepted and the advertisement is truthful and directed at physicians rather than consumers.

Clement is a master of this technique, employing it selectively and strategically for his most important points. If you’re interested in testing it out, follow that lead.

While the road to hell may be paved with adverbs (and adjectives), as Clement demonstrates, the road to a good brief may be paved with a few of them as well! 

Happy Friday!

Tuesday, June 14, 2016

Three Neglected (Keyboard) Keys in Effective Legal Writing

*This is a guest post by Joe Fore, Assistant Professor of Law, General Faculty, and Co-Director of the Legal Research and Writing Program at the University of Virginia School of Law.  

UPDATE: 7.8.16: This article won the LitigationWorld Pick of the Week award, given to one article every week that the editors of LitigationWorld feel is a must-read for litigators, corporate counsel, and others working in litigation. 

Several weeks back, Above the Law’s David Lat wrote a post about his trip to the Fifth Circuit’s 2016 Judicial Conference. Lat gave a great recap of Bryan Garner’s presentation on “3 Neglected Keys to Effective Advocacy, which, very briefly, were: 

  1. Avoid the awkward single-sentence structure for questions/issues presented. Instead, use the multi-sentence “deep issue” structure. 
  2. Use headings that read like regular, full sentences.
  3. Skip the traditional fluff and make your introductions and conclusions powerful.

These are certainly helpful ideas. But the title of Lat’s piece got me thinking a bit more literally about neglected keys. What are three neglected keyboard keys for effective legal writing? I nominate these three (plus one bonus key):

1.                  The Period Key

A common comment I make to my students is that they’re “trying to do too much work in this sentence.” Garner, in Legal Writing in Plain English, uses the term “overparticularization—the wretched practice of trying to say too many things at once, with too much detail and too little sense of relevance.”

Legal arguments can be complicated, requiring a writer to make multiple sub-points to further a main idea. And it can be tempting to mirror the complexity of an argument with a complex sentence structure. But cramming too many sub-points into a single sentence makes it tough for a reader to follow.

In reality, complex ideas don’t require complex sentences. So explain complicated ideas step-by-step in separate, shorter, and simpler sentences. Take, for example, this passage from Justice Ginsburg’s majority opinion in Betterman v. Montana, which succinctly summarizes the life cycle of a criminal case:

Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase.

The longest sentence in this paragraph is just 17 words; the shortest is 6 words. (And for you readability-stat fans, the passage checks in at a 9th-grade reading level and a readability score of 47.7.)

There are a few ways to reduce sentence length and enhance clarity. Break up compound sentences. Don’t be afraid to start sentence with “And” or “But.”(Chief Justice Roberts’s recent opinion in Foster v. Chatman begins at least 4 sentences with “And” and at least 12 sentences with “But.”). And short, peppy transitions can help show the relationship between ideas. (Note Justice Ginsburg’s transitions in the passage above: “First,” “Once charged,” and “After”.)

Hit the period key more often for shorter, clearer sentences.

2.                 The Return Key

Just as shorter, focused sentences help to build an argument, coherent and focused paragraphs do the same thing on a larger scale. What does it mean to have a focused paragraph? Stephen Armstrong and Tim Terrell suggest that “the first test is whether the writer, if pressed, can look you in the eye and state the paragraph’s point in a crisp sentence.”

It’s certainly possible for paragraphs to have too little information to fully explain a coherent idea. But the more common flaw is for paragraphs to include too much extraneous information that strays from the paragraph’s central point. And long paragraphs—with their large chunks of unbroken text—are visually intimidating and hard to read on tablets and other screens.

Find yourself with meandering, page-long paragraphs? Check to see if each paragraph is making a single point. Be honest. Chances are that you’re actually making multiple sub-points that could be made more clearly in discrete paragraphs.

Hit the return key more often for more focused paragraphs.

3.                    The Delete key

This is, perhaps, the hardest key to feel comfortable with. After all, writing is hard. So it can be agonizing to craft a clever sentence, paragraph, or section—only to cut it in the editing phase. It can make you feel like all of that initial drafting time was a waste.

Try not to think of it as “cutting.” Instead, try to think of it as whittling away the excess to reveal the clearer and more effective writing underneath. An initial draft is like a raw block of marble: it takes hard work to quarry it and get it to the studio. But all that work is done with the knowledge that much—perhaps most—of that block will be chipped away in the sculpting process. Self-important words, lengthy transitions, legalese, clever zingers. All might end up on the cutting-room floor. And that’s OK.

And don’t just stop with words and sentences; have the courage to delete whole ideas or arguments, if necessary. As Garner and the late Justice Scalia note in Making Your Case, weak arguments undermine your good ones: “[A] weak argument does more than merely dilute your brief. It speaks poorly of your judgment and thus reduces confidence in your other points. As the saying goes, it is like the 13th stroke of a clock: not only wrong in itself, but casting doubt on all that preceded it.”

Hit the delete key to remove everything but the essential and the clear.

BONUS: The Hyphen Key. Lastly, I’ll throw out one more under-used key: the hyphen. It’s useful for creating compound modifiers, which help reduce ambiguity. Plus, in Microsoft Word, hitting it twice and typing another letter immediately after creates an em dash—an effective punctuation mark that can add punch to sentences when used in moderation.