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 grammatical 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.

--Excerpted from Better Legal Writing

Sentence problems 2--nominalizations

"Nominalization" is the grammarian's way of saying that you took a perfectly good verb, turned it into a noun, and then you had to add helping verbs to get the same meaning across. Nominalizations appear regularly in legal writing and contribute to that stuffy, bureaucratic odor that floats around much legal writing.

Nominalizations are italicized here:

Poor
Before attendance at a pre-trial conference, a lawyer should seek confirmation of authority to enter into a settlement agreement.

Better
Before attending a pre-trial conference, lawyers should confirm their authority to settle.

Poor
The defendant made a referral to Emily Graves, a financial planner, so that she could provide my client with advice in making investments.

Better
The defendant referred my client to Emily Graves, a financial planner, so that Ms. Graves could advise my client about investing.

--Excerpted from Better Legal Writing

Sentence problems 1--excessive prepositions

What's wrong with this sentence?

• A knowledge of correct trial procedure is the duty of all of the members of the bar of this state.

It has too many prepositions and is choppy and annoying to read.

Try this:

• All the state's bar members must know correct trial procedure.

Watch your sentences and see if you use too many prepositions.

Here is a real sentence my sister sent me. A lawyer wrote it:

• There is no current estimate of the number of boxes of records in possession of the schools.

If you were asked to comment on this sentence, you might simply say "awkward." Indeed it is awkward, but now you know specifically why: too many prepositions.

So let's put an actor in the sentence and rewrite to avoid excessive prepositions:

• We have not estimated how many boxes of records the schools have.

That's better--5 prepositions down to 1.

--Excerpted from Better Legal Writing

Comment on vel non

I had to share this comment with all readers. I laughed until I stopped:

"Vel non" is especially hilarious, because even its English translation is useless.

• Whether, vel non, plaintiff complied . . .
  
• Whether, or not, plaintiff complied . . .
  
• Whether plaintiff complied . . .

A few years ago, someone, with a devilish intent, took a word processor and analyzed all the opinions for a given period of years issued by the United States Court of Appeals for the 2nd Circuit. They counted the frequency of words and phrases. There was one judge who was stuck on "vel non." He used it hundreds of times, and more often than all the other judges combined. The study was published in the New York Law Journal, a daily read by nearly every lawyer in the New York City legal world.

Whether, vel non, that judge continued to use the phrase, vel non, is not well known to me.

Against Latin

I have a bias against Latin in legal writing. I think Latin makes legal writing sound more complicated than it is or needs to be. I think legal Latin excludes nonlawyers. I think it serves only to brand writing as legal and writers as lawyers. Those aren't goals I support.

But not everyone agrees with me.

In fact, several of the Latinisms you'll see below were taken from a 1997 article called Latin in Legal Writing, by Peter R. Macleod.* Macleod's student note surveyed the use of ten Latin phrases--that are not terms of art--from three courts: the United States Supreme Court, the California Supreme Court, and the Massachusetts Supreme Judicial Court. He found that these nonessential Latin terms are either holding steady or actually gaining in use in judicial opinions.

I find that odd, and I wonder why it should be so. Do judges feel that using Latin enhances their sense of belonging to a learned profession? Perhaps. But one thing is clear: their use of Latin does not enhance the clarity of their prose. My position is this: if there is an everyday English equivalent, even if it is longer, use it.

So here's my list, with comments.

ab initio
"From the beginning." That's a better phrase, so use it.

a fortiori
"Even more so." Use that English phrase or revise:

• If a lawyer with 25 years' experience needs to study legal drafting, a fortiori a new lawyer needs to.
• If a lawyer with 25 years' experience needs to study legal drafting, then a new lawyer needs to all the more.

arguendo
"For the sake of argument." "For arguments' sake." The English phrases are longer, but better.

de minimis
"Minimal; insignificant." Both are better than the Latin phrase.

inter alia
"Among others; among other things." I first met this phrase in law school and wondered about it for weeks before looking it up. It struck me then, as it does now, as pompous and showy. I've never used it and suggest that you don't.

locus
"Place." Use the English.

ratio decidendi
"Reason for a court's decision; rule on which a decision is based." Makes "the reason the court did what it did" into a lofty, intellectual exercise. Or at least makes it sound that way to the uninitiated. Replace it.

sua sponte
"On its own; on its own motion." The English is longer but better.

sub judice
"Before the court; under consideration here." This phrase is even worse than "instant case" and "the case at bar" because it's not only fancy, it's Latin. Try "the present case," "our case," or restate the proper name: "the Peterson case."

vel non
"Or not." Use the English.

*39 B.C. L. Rev. 235 (1997).

--Excerpted from Better Legal Writing

Drafting vs. persuasive writing part 2

I'd like to comment on these two comments:

• Great idea. As a trial lawyer, I do a lot of persuasive writing. But at the time of settlement, it's drafting a settlement agreement that pays off in the end.

This is an excellent point. In fact, a survey I conducted last year has suggested to me that although not all lawyers do persuasive writing, nearly all do some legal drafting. Legal-writing expert Garner agrees:

• [E]very lawyer occasionally gets involved in legal drafting of some sort--even if it's only a settlement agreement.

--Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises 89 (U. Chicago Press 2000).

The other comment:

• Interesting idea. But why is it an either/or proposition? Though it's often treated as an obligatory course taught only because students are expected to have it, why not include legal writing courses throughout three years of law school. That way, students will get a substantial amount of persuasive writing, and will also spend time learning transactional writing. Legal writing is one of the primary tools of the trade, yet it is still taught poorly in many schools (poorly paid adjunct faculty--or worse, upper level students; one-year requirement during first year; limits on type of writing taught; etc.)

Here's a commenter who know something. Well put. I couldn't agree more.

Perhaps the basics of legal research, memos, and correspondence in the first year; persuasive writing and transactional drafting in the second year; and a seminar or advanced, independent-study project in the third year.

That kind of program or something like it may already exist, but it is not likely to exist at my school any time soon.

Legal drafting instead of persuasive writing?

Tell me what you think.

What if the first-year law-school curriculum covered legal drafting intensely and required students to negotiate and draft one serious transactional document as well as some shorter ones? What if it required them to study legal drafting instead of persuasive writing?

Or, more moderately, what if the focus on the first-year legal-writing course was memos and transactional documents instead of memos and briefs? I mean what if the first-year course did cover persuasive writing, but only briefly, the way some first-year programs now cover transactional drafting?

And what if the legal-drafting component of the first-year course was a major part of the course, as brief writing and oral advocacy are now, to the point that first-year students participated in a negotiating and drafting competition instead of a moot-court competition?

Perhaps what I'm really asking is which is more important to the development of a good lawyer: persuasive writing or legal drafting?

So maybe we should sponsor both types of competitions and allow first-year students to choose what they wanted to study after memos: briefs or transactional documents.

I'm proposing a paper on this topic and I'd love to hear what you think. What are the pros and cons?

Guidance on converting to plain English

I got started with my little "convert to plain English" obsession several years ago, and I began re-writing almost any legal text I came across: credit card agreements, website disclaimers, government notices, waivers of liability, and more.

I've also been lucky enough to get some paid, hands-on experience, as I mentioned in yesterday's post.

If you're interested in doing this kind of work yourself, here are the two most helpful books you can read. Both are out of print, but both are available used from Amazon.com.

How to Write Plain English: A Book for Lawyers and Consumers
by Rudolf Flesch

Writing Contracts in Plain English
by Carl Felsenfeld & Alan Siegel

Turning legalese into plain English?

A commenter writes--

• Plain English legal documents should be the goal of every attorney, every legislature. Lawyers often argue for obtuse language on the basis that judges accept it as settled law, regardless of how hard it is to understand for the average Joe.
  
  Do you know of any person or entity that specializes in turning legalese into plain English language that can stand up in court?

Yes, as a matter of fact, I do.

Me. It's actually sort of a specialty of mine.(Self promotion follows.)

I am currently the plain-English drafting consultant to a state bar task force that is trying to improve our jury instructions by converting to plain English. I have worked as a plain-English consultant for the local cable-access center; I redrafted their rules and procedures into plain English. And I have handled a number of other smaller matters.

But the biggest project I have worked on was a for a large home builder with multi-state operations. I redrafted several documents for the company, including a deed of trust, promissory note, arbitration agreement, and other contract exhibits. The lawyers there said they were happy with the plain-English documents.

And as for the "stand up in court" part, I rely on two things: (1) the substantive expertise of the person or group that hired me, and (2) my own research and experience with plain English that stands up in court.

Archaisms that must go

Hereinbelow a list of archaic words and phrases we should banish forthwith:

know all men by these presents
This phrase still shows up in deeds and other real-estate papers. If you are beginning drafted documents this way, stop it. It's archaic nonsense and also sexist.

to wit
No writing experts support this phrase. There is always a simpler equivalent: "for example," "such as," or the colon.

wherefore premises considered
I had a legal assistant ask me after a seminar if it was okay to remove this phrase from the end of a motion. Yes, it is, but you don't have to ask me. Look it up. No one defends it; all the experts are against it.

witnesseth
Do you know what this means? If not, why are you putting it in your document? If you do look it up, you'll see that it's an "archaic formalism [that is] best forgotten." David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage 691 (West 1992).

--Excerpted from Better Legal Writing by Wayne Schiess

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Best book on English usage

For the best modern book on English usage, I recommend--



Click here to get Garner's Modern American Usage

Up-to-date, thoughtful, and with numerous examples, it is perhaps the best writing reference you can have on your desk today.