Prefer active voice to passive

I've posted two previous essays on passive voice. Perhaps I should say: Two previous essays on passive voice have been posted by me. See the May 20th post and the April 21st post in the archives.

I'll be traveling to Houston today to give a seminar on legal writing at Fulbright & Jaworski. I'll be speaking for four hours to summer associates, associates, and senior attorneys.

I have submitted my article, The Art of Consumer Drafting, to 38 law reviews through an online submission program. Only 2 have rejected it so far! This is the article I wrote to accompany my presentation at the American University Washington College of Law's Legal Rhetoric Symposium in April.

And, in case you care, here is my official listing of faculty activities from January to May 2005:

• January 17: Gave a seminar on legal writing in San Antonio to attorneys from the City of San Antonio Legal Department and the law firm of Cox Smith Matthews.
• April 8: Attended and presented a paper for the 3rd Annual Legal Rhetoric Symposium at American University Washington College of Law in Washington D.C. The symposium’s theme was "The Art of Legal Writing," and Schiess’s paper was titled "The Art of Consumer Drafting."
• May 24: Gave a seminar on legal writing to lawyers and summer associates at the law firm of Fulbright and Jaworski in Houston.
• Continued work on the Texas Pattern Jury Charges Task Force.
• Supervised students preparing the 10th edition of the Texas Law Review Manual on Usage and Style.

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Sentence problems 3--passive voice

Do you know what the passive voice is? Many lawyers do not. Many believe it is any verb that is not "strong," or any form of the verb "be," or any past tense verb. It is none of those, though all might be labeled passive in a general sense.

The passive voice is a form of the verb "be" (be, am, is, are, was, were, being, been) and a past participle (usually a past tense verb). If the verb works with "have," as in "have _____," then it is a past participle.

In the passive voice, the subject is not doing the action; the subject is being acted upon. So it is possible to leave the actor out of the sentence entirely. Thus, the passive voice presents two problems:

First, the normal reader expectation of [actor-action-thing acted upon], which fits the expected English order of subject, verb, object, is subverted. Instead, it becomes [thing acted upon-action-actor] or, because you can leave out the actor: [thing acted upon-action]. In other words, sentences can be direct and active, like this one:

• Active: I sent the letter.

But with passive voice, they get out of typical, expected order, and end up like this:

• Passive: The letter was sent [by me].

Second, the passive voice emphasizes the thing acted upon and obscures the actor. Of course, you may want to obscure the actor, and you may want to emphasize the thing acted upon. For example, in your sentence you may want to emphasize that the letter is being sent and de-emphasize who sent it. That’s fine, as long as you do it intentionally and sparingly. But for most texts, better writers don’t want to emphasize the thing that something was done to; they want to emphasize who did it. So better writers use the passive voice rarely. For example, what are you emphasizing here?

• The motion was filed, a hearing was held, and a ruling was issued.

Are you emphasizing these three items: the motion, hearing, and ruling? Or are you trying to avoid showing who did these things? This version changes the focus:

• The district attorney filed the motion, both lawyers attended a hearing, and the judge issued a ruling.

Here’s another example:

• The test might have been easier for students if it had been designed to measure their memories.

Can you identify the passive-voice construction? Remember, the passive voice requires a "be" verb and a past participle. "Been easier" is not passive voice: "easier" is not a past participle. The passive voice construction is "been designed."

And by the way, this is probably a better sentence:

• The test might have been easier for students if the professor had designed it to measure their memories.

Too much "background" in scholarly writing.

I read a lot of scholarly writing on the subject of legal writing. A lot. Like a dozen law-review articles a month, and sometimes more.

I'm tired of the extensive background given in some of these articles. Two questions:

1. Can't we assume some knowledge of the field by the likely readers of the article?
2. If we must give background, can't we keep it brief?

Sometimes, the background is longer than the analysis. I don't like that, and I'm not alone. Here's what Eugene Volokh says about it in his excellent book, Academic Legal Writing:

The purpose of your article is to state and prove your claim. That's where the action is, and you should be excited and impatient about getting there.

Before you get there, you'll probably have to describe some relevant background matters. If you want to write about why certain kinds of zoning laws violate the Takings Clause, you'll have to describe these laws briefly . . . .

The key words here, though, are "briefly" and "background." Too many student articles spend eighty percent of their time summarizing the law and twenty percent explaining and proving their claims. Doing this is tempting: Summarizing the law is the easier task . . . .

You can't prove your claim without explaining the background facts and doctrine, but do this as tersely as possible.

All you do in this section is give the reader the legal and factual framework necessary to generally understand what follows.

Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review 36 (2d ed., Found. Press 2005).

Let's do better.

If Alanis Morissette took my class

She might have sung this song (to the tune of her hit "You Oughta Know"):

I want you to know,
That I tried really hard
To get an A+ on,
Your research memo.

Oh no but I got a C
And that's really funny
Because my roommate, she got an A.

I cited cases for you,
I followed CREAC for you.
I even stayed within the [bleeping] word limit.

Now a 2.2 don't look very good as a GPA on a résumé. Aah!
Now I know that you know that I won't get job
And I'm gonna have to stay in summer school, summer school, summer school!

And I'm here, to remind you
Of the mess you made when you gave that grade.
It's not fair, to give C+
When I always got A's in undergrad
You, you, you, oughta know.

"shall" vs. "will"

Question:

What is your opinion on "shall" vs. "will" in contracts?

These words have different meanings but both can be used effectively in contract drafting as long as you're careful about your usage.

Shall
Did you know that "shall" is the most misused word in all of legal language? It is. In the current edition of Words and Phrases, "shall" alone is followed by 109 pages of case squibs, and "shall" phrases cover 45 more pages. Yet its misuse is one of the most heavily repeated errors in all of law.

Here's where lawyers go wrong: When "shall" is used to describe a status, to describe future actions, or to seemingly impose an obligation on an inanimate object, it's being used incorrectly. For example, all of these are wrong:

• Status: "Full capacity" shall have the following meaning . . .
• Future action: If . . . then the contract price shall be increased . . .
• Faulty imposing of obligation: The remaining oil shall be sold by lessee . . .

To correctly use "shall," confine it to the meaning "has a duty to" and use it to impose a duty on a capable actor. Bryan A. Garner, A Dictionary of Modern Legal Usage 940–941 (2d ed., Oxford U. Press 1995). Here's how:

• Lessee shall sell the remaining oil . . .

In other words--

• Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .

Some suggest that lawyers are incapable of using "shall" correctly, so we ought to banish it entirely. Michèle M. Asprey, Shall Must Go, 3 Scribes J. Leg. Writing 79 (1992). One recommendation is to use "must" instead. Of course, you cannot search and replace every "shall" with "must." Scrutinize each use carefully.

Will
You can use "will" to create a promise--a contractual obligation. See Bryan A. Garner, A Dictionary of Modern Legal Usage 941-942 (2d ed., Oxford U. Press 1995). When used in this way, "will" is not merely stating a future event, it is creating a promise to perform:

• Landlord will clean and maintain all common areas.

You could use "shall" for the other party's obligations and "will" for your client’s obligations, though the effect of these words should be the same. The difference reflects only the impact on the reader.

Recommendation
In most basic contracts, I recommend using "will" to create obligations, as long as you are careful to be sure any given usage can't be read as merely describing future events. I'm generally against "shall" because it is harder to use correctly and it is archaic. But not everyone agrees with me. Kenneth A. Adams, A Manual of Style for Contract Drafting 24-25 (ABA 2004). Adams prefers using "shall" as long as it's used correctly.

See also Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992)

"may" vs. "reserves the right to"

Question:

Should I substitute "may" for "reserves the right" in a legal document? For example—

1. Company X hereby reserves the right to bring suits, claims, and actions for any and all causes of action arising from this Agreement.

or—

2. Company X may sue you for the things you do under this Agreement.

Some suggest that in number 1, "reserving the right" to do something is more powerful and has a more certain legal meaning than saying that one "may" do something.

Schiess’s response:

I believe "may" is the better word here. It is shorter, has the unanimous approval of legal-drafting experts, and presents only the remotest chance of ambiguity.

Shorter is better
When you can convey the same information in fewer words, the shorter way is better. Always. I’ll cite myself for that point. Wayne Schiess, Better Legal Writing __ (Wm. S. Hein 2005) (forthcoming). So "may" is better than "reserves the right to" if it conveys the same information.

Experts agree on "may"
Every legal-drafting source I’ve ever read and that addresses the subject recommends "may" for discretionary acts in place of longer phrases such as "is entitled to," "is authorized to," and "has the discretion to." Here is a sampling:

• "'[M]ay' means 'has discretion to,' 'is permitted to' or 'is authorized to.' (Using any of these formulations as an alternative to 'may' . . . would constitute circumlocution.)" Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements 33 (Quorum Books 2001).
• "If there is no obligation, but only a discretion, 'may' is the word to use." Michèle M Asprey, Plain Language for Lawyers 203 (3d ed., Federation Press 2003).
• "'May' expresses discretionary authority." Barbara Child, Drafting Legal Documents: Principles and Practices 383 (2d ed., West 1992).
• "To create discretionary authority, say 'may.'" Reed Dickerson,The Fundamentals of Legal Drafting 214 (2d ed., Little, Brown & Co. 1986).
• "['May' means] has discretion to; is permitted to[.]" Bryan Garner, A Dictionary of Modern Legal Usage 552 (2d ed., Oxford U. Press 1995).
• "Use 'may' to create a privilege." Thomas Haggard, Legal Drafting in a Nutshell 237 (West 1996).
• "[T]he use of 'may' is limited to the grant of discretion or authority." Robert J. Martineau, Drafting Legislation and Rules in Plain English 81 (West 1991).

Remote risk of ambiguity
The word "may" does have another meaning: "possibly will." So in the sentence "The judge may dismiss," we have ambiguity. Does the sentence mean the judge has the authority to dismiss? Or does the sentence mean the judge possibly will (or might) dismiss? It's not clear. See David Crump, Against Plain English: The Case for a Functional Approach to Legal Document Preparation, 33 Rutgers L.J. 713, 729 (2002).

In the piece I just cited, Professor Crump insists that "The judge has the discretion to dismiss," is better and clearer than the sentence using "may" because of the ambiguity: does "may" mean "has authority to" or "possibly will"? Perhaps in a legal memo, a brief, or a law-review article he would be right.

But the question raised here is about using "may" in legal drafting, in what I assume is some kind of transactional document. The use of "may" to mean "possibly will" in a transactional document is rare but does occur:

One slight complication inherent in using "may" to connote permission is that it can also be read as indicating that something might come to pass. Take the following provision: "During the term of this Agreement, the Investigator may provide the Sponsor with confidential information." This could be read as meaning that the Investigator is authorized to provide the Sponsor with confidential information, but the intended meaning is that it is possible that the investigator will do so. You can usually discern from context which meaning is intended.

Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements 34 (Quorum Books 2001).

But you can avoid even the need to rely on context by using one of these options:

1. In the document, define "may" to mean "is authorized to" and use it carefully only for that meaning.
2. Scrupulously avoid using "may" to mean "possibly will" in any legal-drafting project.
3. Do both 1 and 2.

Powerful and certain
As for the suggestion that "reserves the right" is more powerful than "may," I don't know. We could test the two usages on lawyers or nonlawyers and gauge their effect. My instinct is that shorter is more powerful, and that what is really being suggested is that "reserves the right" sounds more legal. It sure does. But generally, I don't care of something sounds legal as long as it IS legal, and I am not going for emotional impact in legal drafting. I want clarity and precision, and 'may' gives me that.

And what about the suggestion that "reserves the right" has a more certain legal meaning than "may"? This claim is often made about legalistic words and phrases, but it can rarely be backed up. See Benson Barr, George Hathaway, Nancy Omichinski, & Diana Pratt, Legalese and the Myth of Case Precedent, 64 Mich. B. J. 1136, 1138 (Oct. 1985).

One who asserts that a word or phrase has a certain legal meaning should be required to prove it with recognized, consistent legal authority. By the way, a search of the current edition of Words & Phrases turned up no cases construing the phrase "reserves the right" and one case construing "reserves the right to decide," the closest phrase I could find.

Use moderate enumeration and tabulation for small-scale organization

Numbering can help readers get and understand information quickly and clearly. Even if you don’t number things, setting them off with bullets or simple tabulation can draw attention to them and make them easier to read than text in traditional paragraphs. Here are the guidelines I use:

1. Don’t feel you must number the largest parts of your text--the major headings. There are often few enough of them that their importance will be obvious without numbering.
   
   
2. Don’t feel you must always use a comprehensive, traditional outline format for numbering the parts of your text. Traditional outlines work well to convey the large-scale organization most of the time. But don’t adhere rigidly to an outline if it doesn't work for your text.
   
   
3. Use numbers for small-scale organization. Numbering the headings and sub-headings cues the reader about large-scale organization, but smaller parts can be numbered, too. If you have three points to make, preview them with a numbered list.
   
   
4. Don’t overnumber the text. Especially in legal drafting, you might feel the urge to break down every sentence, phrase, and list into a numbered sequence. But overnumbering makes documents harder to read, not easier. Rudolf Flesch called overnumbered text "shredded English."*
   
   
5. Use hanging indentations with most numbered items, as I have done here. It looks clean and is easy to read.
   
   
6. Use bullets instead of numbers only when there is no order to the items you are listing, and later reference to them is unlikely. In other words, it’s better to refer to "number 3" than it is to refer to "the third bullet."

Most legal writers could use more numbering. I could probably use less.

*Rudolf Flesch, How to Write Plain English: A Book for Lawyers and Consumers 102-113 (Harper & Row 1979).

4 legal writing textbooks

Over the last 13 years of teaching first-year legal writing, I've used four different texts; I'll mention them here, along with a fifth I like. Please note, though, that I teach a very basic course in Legal Research and Legal Writing, once given three credits and now given two. So what I like and what I feel justified in having my students buy are two different things. (Click on the book title to see the book on Amazon.com)

1. Writing and Analysis in the Law by Shapo, Walter, & Fajans. This is an excellent book that is comprehensive and well written. It covers memos and briefs and other legal writing projects. The authors have many years of experience. I stopped using it only because I felt it was more comprehensive than I needed for my basic course.
2. Legal Writing: Process, Analysis, and Organization by Edwards. This is another excellent book, and the first to take an overtly process-oriented approach to teaching legal writing. Again, though, the book was too much for my basic course. For a course that has more credits, I highly recommend it.
3. A Practical Guide to Legal Writing & Legal Method by Dernbach, Singleton, Wharton, & Rhutenberg. This is a very popular legal writing text, and although it needs to be updated (latest edition is 1994), it is still effective. It's basic, simple, clear, and practical. It is just about right for my course, and I used it for several years.
4. The Lawyer's Craft: An Introduction to Legal Analysis, Writing, Research and Advocacy by Glaser, Lieberman, Ruescher, & Su. I've used this textbook for several years, too, and it fits my course fairly well. It covers oral reports, which I like (though other books do that, too), and it recommends multi-sentence questions presented, which no other book I know of does (get into the 21st century, please). It's also simple and clear, which I like. Plus it starts students out with a basic analytical writing exercise called the legal proof, which helps students build to a full legal analysis.
5. Legal Reasoning and Legal Writing: Structure, Strategy, and Style by Neumann. If I had four, five, or six credits for my course, I'd probably use this book. It's thorough, detailed, thoughtful, and well written. It was used here at Texas for a few years before I arrived, and my colleagues and I used ideas and excerpts from it for several years after: the author explains things so thoroughly and insightfully. It's now out in a fifth edition that isn't on Amazon.com yet.

Do you have a favorite first-year legal writing text?

Beginning a letter

I'll return to my list of ten plain-language writing principles soon.

Last week I read this:

"Tact and good policy dictate that letters of rejection or disappointment should first state the reason for the disappointment so as to cushion the impact of the unfavorable news that follows."

--Morton S. Freeman, The Grammatical Lawyer (ALI-ABA 1979).

I disagree. Think of the reader. The reader wants to know the decision, the answer, the bad news. No amount of cushioning will help. Get to the point--then give the reasons. There is no need to be blunt or cruel, of course. But I'd rather read this every time:

I'm sorry, but we won't be able to offer you a job as a legal writing instructor here at the School of Law.

As you know, we interviewed several strong candidates, and the competition for this position was strong. It was a difficult decision. We believe we made the right choice, but we're sorry we had to turn down strong candidates like you.

All the best in your search for a full-time legal writing position.

Besides the fact that I like the direct approach, we all know that if the order of the text had been reversed, the candidates would be skimming like crazy to find the decision. Why put them through that?

In all legal writing, state the point and then the support for the point. That's my view.

Use headings to create obvious, large-scale organization

Any piece of legal writing that is longer than a page or two could use headings. I use headings because I know my readers are busy, and I know that they rarely read a document from beginning to end. They skip and skim. They look for what they want and read only that. Headings help them do that.

Sometimes headings can be a crutch for the novice because they sometimes end up replacing strong topic and transition sentences. And headings can be overdone; I’ve seen a document with a heading for every paragraph. But if you remember to use both topic sentences and headings, and if you use headings in moderation, you’ll have a strong piece of writing.

Types of headings
I use two types of headings:

• short, usually one-word headings that do no more than give a title to what follows, and
• explanatory headings that give a fuller picture of what is to come.

Generally, I reserve short headings for things like titles or parts of a document, like Introduction, Background, Agreements, Discussion, Argument, and Conclusion.

I try to use explanatory headings for everything else. I try to make my explanatory headings short but condensed so the reader gets a good idea of what is coming but is not bogged down with a lengthy heading. This requires a balance.

For example, I am grading a set of memos right now, and the question I asked is whether the text of a warranty disclaimer in a contract is conspicuous under the UCC. I have seen the following headings used in the memos:

(a) Conspicuous
(b) How Texas courts have construed UCC section 2-316(b) and defined “conspicuous.”

Honestly, I would prefer something in between (a) and (b):

(c) Court definitions of “conspicuous.”

To me, (a) is too brief and, even though I know the subject matter of these memos well, the one-word heading does not convey enough to me. The heading in (b) is too long, though I have seen even longer. Remember, we’re talking about headings, not “point headings” in a brief. You’re trying to give the reader a sense of what is coming, not persuade on a point of law.

Placement on the margin
I like headings that line up neatly and vertically on the left margin. That set-up makes the headings easier to skim. I definitely do not like centered headings. I find them distracting and harder to skim. I use them only for the main title of a document, and I sometimes put even the main title on the left margin.

a. SubheadingBut sometimes you need to tab over for sub-headings, of course. This is true especially when you have multiple layers of subheadings. But keep the tabbing to a minimum or you’ll end up with subheadings starting halfway across the page, as with the subheading for this paragraph.

Besides, you can use at least three layers of headings without any tabbing and still not confuse your reader if you use fonts and typefaces well, like this:

Main heading
You can use a boldface type in a contrasting font for the main headings in your document. My earlier post on fonts details why this works well for headings. You can also enlarge the heading type; I sometimes use a 16-point type when my main text is 13-point type.

Subheadings
You can use the same font and type size as the main text, but in a boldface type, for the subheadings. This stands out well and still lets the reader know that this is a subheading. A numbering system tells the reader that, too.

Sub-subheadings. You can use a more subtle typeface, like italics, for the sub-subheadings. I also like to place them in the same line as the first line of text. Readers will see these sub-subheadings when they get there. But these sub-subheadings don’t stand out as much as the other headings. They stand out enough so readers can skim and skip to them, but they keep the page from looking too cluttered or busy.

Keep sentences and paragraphs short

The average sentence length of a readable, clear piece of legal writing ought to be about 20 words. And I mean average. Some sentences should be shorter and some longer. Variety counts and makes text more readable.

So I aim for an average of 20 words and a maximum sentence length of 45 words. But the truth is, the more I write, the shorter my average sentences get and the shorter my longest sentences get. I’m probably at about 15 and 35 now.

I keep my paragraphs short, too. Probably too short for some tastes. The only rule I’m willing to give here is that if you are double-spacing, a paragraph that is one page long is too long. Varying the length of paragraphs is important, too. Variety seems to help readers stay engaged.

And yes, the occasional one-sentence paragraph can be effective.

Most people who hear me preach about short sentences and short paragraphs don’t argue with me, but I know some think I’m just trying to convert legal writing into baby talk. Some surely think I’m not talking about real legal documents like briefs or contracts. And some probably think my message is for others--others who can’t write long, elegant sentences or who can’t develop full, deep paragraphs. (Of course, we often think writing advice is for someone else.) But I’m talking to you. Yes, you.

Why am I willing to risk sounding like a baby-talker? Why do I smile when the average sentence length of my document dips below 15 and the average reading level of my document dips below the 10th grade?

I have finally let go of the idea that long sentences are sophisticated or intellectual. I have stopped believing that short sentences reflect a simple mind. Instead, I believe short sentences reflect care for the reader. I believe short sentences and paragraphs reflect a writer’s confidence, a writer’s mastery of the material, and a writer’s efficient use of the language.

There’s nothing wrong with a long, well-written sentence or a long, thoroughly developed paragraph. But when you use a lot of them, you will make your document harder to read. Besides, often it’s actually harder to be both clear and brief, or what we might call succinct. But the effort is worth it to the reader.

Note: The average sentence length in this post is 13.5 words and the longest sentence is 31 words. The grade level is 8th.

Use effective, readable typefaces and type sizes.

Fonts and serifs
Before the mid 1990s, there was a broad consensus that serifed typefaces were easier to read. Serifed typefaces are those that have little extensions, or "serifs" at the ends of the strokes of the letters. Apparently, these serifs made it easier for the eye to quickly and easily distinguish letters. Granted, we're talking about a very fine point here--reading delays measured in seconds over a page of text. Still, for typical documents, the recommendation was to use a serifed font. I like these:

• Times New Roman
• Georgia
• Palatino

But today, that recommendation is not as rigid, for two reasons.

First, the modern reader is much more accustomed to sans-serif fonts and is able to read them quickly and easily.

Second, a lot of reading today is done on-screen, and screen resolutions dilute the strength of the serifed fonts.

So sans-serif fonts can be effective, and even in traditional legal documents I am beginning to see sans-serif fonts. Here are three:

• Trebuchet (used in this blog)
• Arial (a popular font)
• Comic Sans

If you use a sans-serif font for a legal document, you do run a small risk that it will seem informal. That's why I recommend using a serifed font for most legal documents. The document will look professional and traditional. That's safe.

Type sizes
I'm a big fan of using a larger-than-normal font in legal documents. I tend to use Times New Roman 13-point type. I push my margins in to 1.3 inches to shorten the line length of the text. I also single-space my documents unless court rules require double-spacing. I find that using 12-point type and 1-inch margins makes a single-spaced the document very crowded. And in fact I believe that's the main reason so many legal documents are double-spaced: to give the reader a break from the dense, crowded look of 12-point type with 1-inch margins. (And please don't tell me that legal documents are double-spaced for readability; we easily read books, magazines, and newspapers all the time, and none of those are double-spaced.)

Mixing fonts
It can be effective to use more than one font or type size in a single document. But you must be careful and wise. Three points to remember:

First, generally avoid using more than two fonts in a single document. To use more can make the document look busy or, worse, amateur.

Second, if you're going to use different fonts, make them very different. Don't risk any chance the reader will be unsure if you're using a different font. I recommend using a serifed font for the main text and a sans-serif font for the headings, as I've done in this post. As you can see, my favorites are Arial Bold for the headings and Times New Roman for the main text. This approach makes the headings really stand out from the main text. I've used this approach in letters, court documents, and transactional drafting.

Third, vary type sizes sparingly. I limit larger type sizes to two situations:
(1) When text must be conspicuous by statute, a larger type size can work well.
(2) Document titles, like Motion to Dismiss or Construction Contract can be in a larger type size.

And by the way, there is still almost never a place for fancy scripts
or colored type in legal documents.

For further reading, see Robin Williams, The PC is Not a Typewriter (Peachpit Press 1992); Robin Williams, The Non-Designer's Design Book: Design and Typographic Principles for the Visual Novice (Peachpit Press 1994).