Legal Writing Pet Peeves

I was involved in an interesting Twitter discussion recently about legal writing pet peeves. Both law professors and practitioners alike chimed in to create the list. So what are some common pet peeves among those who judge the writing of students and young associates?

--Starting sentences with: “It is important to note that” (@ksilverkelly), “Due to the fact that” (@daniel_l_real), and “There is/are” (@ladylegalwriter)

--Using double negatives (@katrinajunelee)

--Failing to use affect and effect properly (katrinajunelee)

--Employing rhetorical questions (Who likes those?) (@djsziff)

--Using “however” in multiple consecutive sentences (@aerwrites) and failing to properly punctuate when using “however” mid-sentence (@ladylegalwriter)

-- Employing unnecessary parentheticals to define terms (@5thcircappeals)

Other pet peeves of mine include:

--wordiness

--using too many nominalizations (which leads to wordiness)

--failing to spell-check and proofread (They are not the same thing!)

--failing to follow local rules

--employing over-the-top language

What do you think of the list? What would you add?  

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!

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.

Meaningful Feedback for Associates

With summer and new associate season approaching, now’s a good time for attorneys to consider how to get the most of out their associates. I’ve found the tips below help associates improve their writing and help attorneys get the most bang for their associate buck.

Be Specific

“Improve your writing” (while perhaps true) isn’t the type of helpful feedback that summer and young associates need. If an associate’s writing is lacking, provide the associate with specific information about what aspects of the writing need improvement. Is the associate’s grammar and sentence structure poor? Does the associate fail to adequately outline the facts? Is the explanation of the law cursory? Does the analysis need more in-depth treatment?

And while you’re at it, offer explicit suggestions for improvement (e.g., you should also have included facts X, Y, and Z in your Statement of Facts). Being specific with the associate about the areas of his or her writing that need improvement greatly increases the likelihood that you’ll see that improvement.  

Give Feedback Verbally and In Writing

Associates generally learn more from written feedback when they can ask the attorney questions about why the attorney made certain changes to the associate’s work. Consider marking-up a portion of the associate’s work then sitting down with the associate for a few minutes to explain the comments. Letting the associate ask questions about specific changes and then revise his or her own work (as opposed to having an administrative assistant make changes) will help the associate better understand your expectations and the areas in which he or she needs to improve.

Be Timely

There’s no denying that lawyers are busy people. Finding the time to sit down with an associate to provide feedback can be a challenge. But both you and the associate will benefit if you provide the associate with feedback quickly. First, the associate’s written work is still fresh in his or her mind, making critiques easier to see and understand. Second, the associate can begin to improve his or her work immediately (rather than spending months doing work “wrong). And, third, by providing timely feedback, the attorney will hopefully see improvement on the next assignment (as opposed to continuing to receive sub-par work over and over again).

Give Praise, When Due

Studies have shown that most people respond best to positive reinforcement than to other behavior modification techniques. One thing many associates learn early in practice is that criticism is everywhere but praise is non-existent. Particularly for young associates, the pride in having an attorney tell you that you did a good job can sustain you through the long periods when you’re still learning to practice law and making mistakes on a seemingly daily (or hourly) basis. Offering a few words of praise and encouragement will go a long way toward ensuring that the associate continues to work to improve.    

You’ll do yourself, your firm, and your associate favors by providing helpful, specific feedback that the associate can use to improve his or her writing. 

Eliminate the Brown M&Ms from Your 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

Over the past three decades, the story of how Van Halen banned brown M&Ms has gone from backstage to boardroom. And for legal writing professors wrapping up their spring semester or for employers who will be hosting summer associates and interns, this same tale provides a convenient metaphor about the importance of watching the smallest details in legal writing.

While the story has been shared widely in recent years, perhaps a quick refresher is in order. As Van Halen toured the world in the early 1980s, the band brought along its contract rider, a thick document that detailed what the promoter was required to provide at the concert venue. Buried among the rider’s fairly straightforward—albeit extensive—food and drink requests was one very specific candy command: “M & Ms (WARNING: ABSOLUTELY NO BROWN ONES).”

For years, the brown M&Ms ban was panned as an outrageous act of rock-star decadence; pampered musicians making a ludicrous demand just because they could. But, as David Lee Roth later explained, the chocolate clause served a crucial purpose.

You see, at the time, Van Halen had perhaps the most ambitious stage show in rock history—complete with unprecedented amounts of complex rigging, lights, speakers. And they took their show into smaller venues that weren’t used to hosting such a massive event. Such a complicated show had numerous technical requirements—from having enough electrical outlets to ensuring that the building’s structures were sufficiently strong to support the stage and lights.

Those technical requirements were spelled out in the contract rider, but promoters often didn’t read it carefully, creating disruptions, delays, and even potentially dangerous conditions.

The brown M&Ms, therefore, were a test—a canary in the backstage coal mine. If the promoter had paid enough attention to remove the brown M&Ms, chances are they did the big stuff right, too. And if not . . . well, David Lee Roth describes his reaction:  

When I would walk backstage, if I saw a brown M&M in that bowl, well, line check the entire production. Guaranteed you're going to arrive at a technical error. They didn't read the contract. Guaranteed you'd run into a problem. Sometimes it would threaten to destroy the whole show. Sometimes, literally, life threatening.

OK, it’s a good story, but what does it have to do with legal writing? Well, in the same way that the brown M&Ms hinted at larger problems, small defects in a memo, motion, or brief can undermine the reader’s confidence in the bigger stuff—the substance of your writing. These defects tell your reader: “I didn’t care enough to get the small things right, so you should also be skeptical about whether my research and analysis are sound.” While there are many possible “brown M&Ms” that can taint your legal writing, here are three for new legal writers, in particular, to watch out for:

Court rule violations

From state civil procedure codes to court local rules to individual judges’ orders, lawyers are beset by technical requirements of all sorts: page limits, typography rules, and filing specifications. Overlooking or flouting these instructions can send the message that the lawyer isn’t committed to finding or following the rules—hardly a desirable reputation for an attorney.

And worse, a judge or clerk reading a submission that ignores basic requirements may think the writer purposely evaded the rules to gain an advantage. In a speech on the subject of “How to Lose an Appeal,” Judge Alex Kozinski of the Ninth Circuit cautioned that defying something as minor as a font-size requirement can “tell[ ] the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority.”

Be sure to check any applicable procedural codes and court websites for any court- or judge-specific technical requirements.

Sloppy or visually unappealing formatting

First impressions matter. And “first impression” doesn’t just mean the opening line or the question presented; it includes how your writing appears visually on the page. A final, written product that looks sloppy, rushed, or poorly thought-out sends the same message about the substance of the attorneys’ work.

Again, it’s imperative to follow any of the venue’s/employer’s/ client’s specific formatting rules. But after you’ve done that, flip through and see how your writing appears on the page. There are many terrific resources for thoughtful and persuasive legal writing formatting. Before sending that memo to the client or e-filing that pleading, look at the document as a whole and ask:

• Does it look neat and polished?
• Have I balanced text and white space on the page?
• Have I used headings to conveniently label sections? 
• Have I limited the use of dense, uninviting chunks of text in footnotes and block quotes
• Have I used bullet points and numbered lists to group related ideas in an easy-to-read way?
• Is my formatting convenient for readers using computers or handheld devices?

Typos and grammatical errors

The odd typo here or there in a long piece of legal writing is almost inevitable. But an error-ridden brief or motion sends one of several messages to a reader:

(1) the writer was unaware of the proper grammatical rule or spelling;

(2) the writer was too inattentive to notice the error when editing; or

(3) the writer saw the error but was too lazy to fix it.

Applying the brown M&Ms principle, a reader might infer that the same writer might be less-than-fully competent, inattentive, or lazy in other areas beyond editing. And such an inference that might be justified. In their 2015 book The Science Behind the Art of Legal Writing, Professors Catherine Cameron and Lance Long share preliminary research showing that attorneys who had been disciplined by their state bar had higher rates of “careless” writing errors in their memos and legal briefs than non-sanctioned attorneys.

A quick grammar refresher, an editing checklist, and careful proofreading—preferably on paper—can help to minimize the chances of having such errors in your writing.

* * * * *

Legal writers spend a considerable amount of time trying to understand the law and then communicating that information in a clear, organized way. You’ve worked hard to produce an accurate and well-reasoned final product. Don’t let brown M&Ms in your legal writing send the reader a different message.

The NYT Sacks the NFL

Anyone who reads this blog or follows me on Twitter knows I'm a huge sports fan. I've written before about Jimmy Graham's dispute with the Saints over the franchise tag, the rhetoric of Deflategate, and sports metaphors in judicial opinions.

David McCraw

And I also love a good lawyer letter. Now this week two of my loves meet in a letter from David McCraw, VP and General Counsel of the New York Times, to the NFL.

By way of background, CTE (chronic traumatic encephalopathy) is a brain disease that can lead to memory loss, impaired judgment, depression, and dementia. Research shows there is some link between repeated head trauma (of the type that occurs every day in the NFL) and CTE, though additional research is certainly needed to determine the extent and nature of that link. 

The NFL has known about CTE for a while. But last month's comments by Jeff Miller, the NFL's senior VP for health and safety, before the U.S. House of Representatives' Committee on Energy and Commerce appear to be the NFL's first public admission of a link between head trauma and CTE. Even after that admission, however, some NFL owners, executives, and coaches have continued to deny the connection, coming off just like climate change deniers and, before them, folks in big tobacco.

Enter the NYT which, a couple of weeks ago, published what I'll call an "unflattering" piece on NFL-funded studies on CTE. According to the article, the studies funded by the NFL were based on incomplete data, included incorrect data, and were performed by researchers who were in the NFL's pocket. The article also explored the connection between the NFL and the tobacco industry.

Understandably, the NFL was none too pleased by the piece. So it wrote a sternly worded letter to the NYT asking that it retract the story. As Deadspin noted when the NFL letter became public, the NFL's argument for retraction wasn't very strong. 

Like a good NFL defense, the NYT's David McCraw spared no mercy in responding to the retraction request. In his response letter to the NFL, McCraw first outlined the NYT's policy of correcting factual errors promptly (the "law," if you will) before noting that the NFL did not allege that the NYT story contained any factual errors about the connection between the NFL and the tobacco companies (i.e., the "law" does not apply). McCraw summarized the NFL's real gripe--that the article's connections between the two industries weren't "meaningful"--then pointed out that whether something is "meaningful" is clearly a question of opinion, not fact (more explanation of why the "law" doesn't apply).   

But McCraw didn't stop there. He went further, hitting the NFL where it hurts in noting that the NFL omitted from its letter any request for retraction of one "essential" documented connection between the NFL and tobacco companies--Preston R. Tisch, who served both as co-owner of the New York Giants and as co-owner of Lorillard (highlighting the NFL's omission of key facts).

McCraw even included the often-elusive public policy argument, pointing out that after the NYT published the story, discussion about CTE, the NFL, and its connection to tobacco companies increased substantially. By demanding a retraction, said McCraw, the NFL was attempting to "silence the public debate with legal threats...[doing] a disservice to its fans and, more generally, to the American people."

McCraw then moved on to the NFL's other issue with the NYT story--its discussion of the CTE studies--and explained why the NYT's retraction policy was inapplicable to that complaint as well:

The [NFL] letter bizarrely quibbles not over whether the research was valid (we all agree that it was not) or whether the NFL defended the research for years (we all agree it did) but whether the NFL has continued to "stand by" the research. If the NFL has previously acknowledged the undercounting of diagnosed concussions, your letter fails to identify any such public declaration.

Then, McCraw ended the letter rather abruptly. Most lawyer letters end with some conclusion, however brief:

--Thank you for your attention to this letter.

--Govern yourself accordingly.

--Please give me a call to discuss this case further.

Not McCraw's. In what would normally be an odd way to organize his response, McCraw concluded the letter by returning to the NFL's gripe about the comparison of the NFL to the tobacco industry. He did this for one clear purpose: the proverbial mic drop (as the kids these days say), which couldn't be better and which wouldn't have had nearly the impact earlier in the response. 

Unfortunately for the NFL, there is actually another interesting link between it and big tobacco, and McCraw did his homework in uncovering it:

While your earlier letter to the Times called the tobacco industry "perhaps [the] most odious industry in American history," you somehow fail to mention in either letter that it was your firm that represented Phillip Morris....

Oof. Perhaps the NFL should come at the NYT with a better offense the next time.

What do you think of McCraw's letter? Did the NFL deserve such a smack-down? Or would a lighter touch have been more appropriate?