Dear Lady (Legal) Writer

In my Dear Lady (Legal) Writer posts, I’ll answer legal writing questions I get from readers, students, colleagues, and friends.

Dear Lady (Legal) Writer,

 

I notice you start sentences with and and but. I was taught you can’t start sentences with these words. What gives?

--JPS

Dear JPS,

I, too, learned you should never start a sentence with “and” or “but.” I think we probably learned this “rule” when we are young because our English teachers were trying to help us avoid sentence fragments. I’m not aware of any widely used style or usage guide that prohibits starting sentences with “and” or “but.” In fact, professional writers frequently start sentences with “and” and “but”—and do so effectively. This isn’t a new trend, either. Shakespeare, Chaucer, and authors of the books of the Bible all started sentences with these conjunctions.   

It is true that “and” and “but” are somewhat informal. That said, sentences starting with “and” or “but” are more conversational than those that start with words such as “however” or “nevertheless.” And many readers respond well to conversational writing—even law-trained readers, like judges.

You should use “and” and “but” sparingly, though, to ensure your writing flows. And remember—mix your sentence structure and length to change emphasis and add interest.

LLW

Love and Due Process

For you procrastinators out there who haven't bought your sweetie a card yet, consider downloading this amazing RBG Valentine.

Happy Valentine's Day!

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.

What's in a Name?

Several readers have asked where I got my blog name, Lady (Legal) Writer. First, it's a tribute to one of my favorite bands, Dire Straits, and its song, Lady Writer. Second, it's a tongue-in-cheek homage to female attorneys in the South, who are frequently referred to as "lady lawyers."

If you're not familar with Dire Straits or Lady Writer, check out Mark Knopfler and his bandmates in this video:

Thanks again to all who read my posts. Happy Friday!

Commandment #2--Proofreading and Spell-checking

Commandment #2--Thou shalt proofread, use spell-check (but not rely exclusively on it), and proofread some more

Proofreading is vital to good written advocacy. You should be proofreading in two separate phases. The first phase should be a macro-level proofread where you look for large-scale problems including organization, flow, and clarity. During the first reading, you should be checking to ensure that your writing is not disjointed, that your paragraphs and sentences flow logically, and that legal principles are clearly and thoroughly outlined and analyzed.

In the second phase, you should be performing micro-editing, looking for smaller details such as proper grammar, syntax, word usage, and sentence structure. Avoid the temptation to combine the micro and macro phases. It’s difficult, if not impossible, to review for content and detail simultaneously.  If you try, you’ll inevitably overlook various problems with both.  Of course, if you find obvious grammatical or other micro mistakes during the macro proofreading stage, you should go ahead and fix them. 

I’ve talked before about good proofreading practices, but as a reminder:

-put the document away for as long as possible before you try to proofread it

-proofread on paper, as opposed to a computer screen
-give yourself time to proofread—thorough, careful proofreading takes a long time
-read the document out loud—you’d be amazed how proofspeaking will help you catch errors
-enlist the help of a colleague—When I practiced, I read numerous briefs for other attorneys and offered both macro and micro suggestions

Spell-check is a very important tool. But you can’t rely on it as your sole method of proofreading. Spell-check often won’t catch errors in words in ALL CAPS (I frequently see BREIFS), doesn’t recognize many legal terms (tortious, for example), and can’t help you recognize typos that are words (guaranty and guarantee, for example).

That said, there is no reason not to use spell-check. I rarely draft a document more than a page in length that doesn’t contain at least one spelling error—the type of error that spell-check will catch. Spelling errors scream sloppiness. It’s difficult for judges to trust the substantive points in documents replete with spelling errors, so you should always spell-check your documents. In using spell-check, keep these points in mind:

-turn off or be careful with “auto correct” features (for a horror story, see my sea sponge story, here)

-add frequently used legal terms to your spell-check dictionary
-double check short, frequently used words like is, it, and if; of, or, and on; and to and do

Proofreading is a very important part of legal drafting. Follow good proofreading practices to improve your writing.

Legal Mumbo Jumbo

I love this cool article on Lawyerist in which the author analyzes Justice Scalia's use of the word "argle-bargle" in his dissent in United States v. Windsor (the DOMA case). The author also outlines other fun words that have appeared in opinions, including "jibber-jabber," "gobbledygook," and--my favorite--"higgledy-piggledy."

I did a little research of my own and found some more interesting word pairs, including:
 
-fuddy duddy (Butler Lime and Cement Co. v. Occupational Health and Safety Comm'n, 658 F.2d 544, 548 (9th Cir. 1981));
-dilly dally (Kam Hon, Inc. v. Cigna Fire Underwriters Ins., 933 F. Supp. 1060, 1063 (M.D. Fla. 1996)); and
-hocus pocus (Tucker v. Sebelius, No. 07-2230 (RBK), 2010 WL 2761525, at *2 (D.N.J. July 12, 2010)

Happy Friday!

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.