Tuesday, February 28, 2006

Persuasion: the "ends" have it.

A broad consensus of commenters and emailers says that the end is the point of most emphasis in a sentence. Strunk and White got it right.

Yet many acknowledged that it often depends on the context and goal of the writing. For example, I tend to think of the beginning of the sentence as the place for a "punch." But that's probably effective only in a new paragraph or in the first paragraph of a document. In general, the end of the sentence is the place for emphasis. As one commenter noted, the beginning of a sentence should generally connect to or build upon old information. The new information, which deserves emphasis, belongs at the end.

Monday, February 27, 2006

Persuasion: beginning or end?

Experts and stylists disagree about this point: What sentence location carries the most emphasis--the beginning or the end?

Here are some examples of both approaches. To emphasize "intent"--
  • To properly apply the legal standard, the court must focus on the actor's intent.
  • The actor's intent must remain the court's focus if it is to apply the legal standard properly.

To emphasize "deception"--
  • When GenCorp told Mr. Mills he was fired for health reasons, it committed deception.
  • The deception arose when GenCorp told Mr. Mills he was fired for health reasons.

To emphasize "Rule 16"--
  • The only authority for making a competency determination is Rule 16.
  • Rule 16 is the only authority for a making a competency determination.

Most experts say the end of the sentence is the most emphatic point. For example, Strunk & White favor the end of the sentence for emphasis. The Elements of Style at 32.

Others favor the beginning.

What do you think?

Thursday, February 23, 2006

Plain English: jury instructions with "preponderance"

The Texas Pattern Jury Charges Plain-Language Task Force ran its first test of the original admonitory instructions last week. Here is one tidbit.

When asked to give a percentage for how sure you must be to conclude that something was proved by a "preponderance of the evidence," the 25 test jurors gave the following percentages:



Of course, the correct answer is 51% or "more likely than not," which is the language California used in its new jury instructions in place of "preponderance of the evidence."

Wednesday, February 22, 2006

Plain English: using "you" part 2

A commenter wrote--
  • "[Using you in regulations] . . . can lead to ambiguity. Regulations are written to be read not only by those who must comply but those who must enforce and those who are protected by the regulations."

My response
The commenter is pointing out that regulations have dual audiences: those who must comply and those who must enforce (and there could be more audiences). This is common in legal writing:
  • You write a will for the testator but you know a judge may construe it.
  • You write a letter to a client but you know your supervisor will read it.
  • You prepare jury instructions for the jury but you know appellate judges will review them.
I assert that it is impossible to write clear, effective text that suits dual audiences on all occasions. The knowledge and expectations of the dual audiences are simply too different.

The solution?

For me, the solution is to look at the problem of dual audiences in a new way, with an insight I gained from a recent book review. Drury Stevenson, Book Review: Forensic Linguistics: An Introduction To Language in the Justice System, by John Gibbons, 77 U. Colo. L. Rev. 257 (2005).

Relying on the work of linguists, Professor Stevenson deconstructs the dual-audience problem and re-frames it as a problem of one audience with "bystanders" and "overhearers." In other words, we write jury instructions for juries--period. But we know that appellate judges are bystanders--or "reviewers." Id. at 269.

So don't write jury instructions for appellate judges; that is not your audience. Write them for the nonlawyers on juries. After all, the reviewing judges are not really reading the instructions for comprehension; they are reading them to see if the proper information was conveyed to the jury. Id.

As for regulations, write them--using you--for those who must comply. The enforcers of and those protected by the regulations are bystanders. If the you varies in a regulation, "announce each audience in a heading, if clause, or note." Thomas Muraswski, Writing Readable Regulations at 35. (The books contains other helpful advice for avoiding the potential ambiguities of you.)

So for me, the dual-audience problem is a false one. Aim at your primary audience, and don't get hung up on the bystanders.

Tuesday, February 21, 2006

Plain English: using you

A commenter writes--

  • [After agreeing that "I" is a good word to use in estate documents.] The pronoun "you" is another matter, however. In a letter to an individual the antecedent will be clear. In many other documents it is not clear. One example is the drafting of regulations.

    In the otherwise excellent discussion of plain-language regulations provided by the Federal Register here, the author recommends the use of "you" for whoever must comply with the regulations.

    This can lead to ambiguity. Regulations are written to be read not only by those who must comply but those who must enforce and those who are protected by the regulations.

The commenter is right about this: you is widely recommended in guides for writing in plain English. Besides the website mentioned, I offer these sources:

How to Write Plain English by Rudolf Flesch:
  • "I consider the you style as absolutely indispensable for Plain English."
Writing Readable Regulations by Thomas Murawski:
  • "The most important word in regulatory writing is you."
Writing for the Legal Audience by Wayne Schiess:
  • "[U]sing you . . . is the single most important technique for making the text readable and effective."

But is the commenter also right about ambiguity?

If the you could be the person who must comply or the person who must enforce or the person who is protected, isn't that a problem? Not as big a problem as you might think. More to come.

Friday, February 17, 2006

Drafting: influential opinion that notice does not include prior

One of my readers consulted Bryan Garner, who opined that sometimes notice can or must be given after the event, and that therefore "prior" is not redundant in "prior written notice." Bryan also said he had asked transactional lawyers attending his drafting seminars, and they agreed with him.

Two thoughts:
  1. Garner is the most knowledgeable expert on legal writing in this country; when he says it, it carries tremendous weight. Draft accordingly.

  2. But asking a group of transactional lawyers whether you can cut something from a drafted document is like asking a baseball player whether he'd like to reduce his batting average. Transactional lawyers add to their documents. They never seem to cut.

On this point, see the discussion of "accretive drafting" in Working With Contracts by Charles Fox.

Thursday, February 16, 2006

Drafting: consensus that notice includes prior

From the comments and from my own queries, I have found a consensus: the concept of "prior" is inherent in "notice."

Generally, we agree that it would not be reasonable in a typical transaction to require notice that is not in advance. If you want to make an exception from that generality, specify it.

Several commenters and others also pointed out that requiring only "prior" notice will often be inadequate: you should specify how prior. Ten days? Thirty days? Otherwise you leave your client open to an argument that notice can be given one minute before the event, or you send your client to a court or arbitrator to decide what time period would be reasonable.

Wednesday, February 15, 2006

Prior written notice?

Question from a reader
Is there a difference between notice and prior notice? To my ear, notice includes the idea of prior. For example, when we say that the basic requirements of fairness are notice and an opportunity to be heard, we mean that you have to receive notice of a proceeding in which you have an interest before the proceeding takes place.

Some write in their contract drafts that thus-and-so cannot be done "without prior written notice." I say "written notice" captures the full idea, and "prior" is redundant. What do you think?

Any readers care to comment?

Plain English: "trix" are for women

I like to use the word testator and I even use testatrix once in a while for fun. Everyone knows what it means and my clients like it fine.

I agree with your use of the -trix suffixes. Why abandon this ancient tradition? For the woman who handles the estate, then, do you use executrix or administratrix?

Heaven forbid a client ever got involved in something as sordid as a criminal case, but then you could refer to the female district attorney at the prosecutrix.

And my female colleagues are always appreciative when I refer to myself as a lecturer, but to one of them as a lecturix.

Tuesday, February 14, 2006

Update: Using "I" in estate-planning documents

Regarding the use of "I" in drafting (specifically, estate-planning documents), traditionally "I" has been used in wills and powers of attorney (durable, health care, financial, and the like), but third-person singular has been used in trust agreements and declarations of trust: settlor or grantor.

I've worked for a few trusts and estates lawyers who scoffed at the use of "I" in trusts. But I've seen others using "I" in their trusts. I never had the backbone to second-guess my skeptical superiors. Any thoughts?

Scoff not.

I assume that for both the wills and the trusts, the client is a person, not an entity. In other words, the settlor or grantor or testator is an individual human being.

In these situations, estate-planning drafters should feel free to use "I" for the person who is acting in the document. That's my opinion. Here's why:
  • If the use of "I" is justified in place of testator, then why not in place of settlor and grantor? I can't think of a rational reason, but I can think of a nonrational one: tradition. It's always been done that way. I have now confirmed this tradition with a nationally known expert on estate planning.

    But unless there is another reason to support the practice of avoiding "I" in trusts, tradition would not be enough for me.

  • If testators, settlors, and grantors are actually going to read the document--and they should--then the use of "I" will make the text more readable, more immediate, and more human. I'm always for that.

  • There is a trend away from -or and -ee words such as grantor/grantee. See Garner's Dictionary of Modern Legal Usage at 305.

The nationally known expert on estate planning also said that because the testator can never be a beneficiary of the will, "I" is fine for wills. But because settlor CAN be a beneficiary of the trust, the use of "settlor" in trusts can help avoid confusion.

It is not clear to me what confusion might result, but I'm just a legal-writing guy, not an estate-planning lawyer.

Do you use "layperson"?

Whenever I hear lawyers uses the words layperson and laypeople or, worse, layman or laymen, I wince a little. I can't even bring myself to use these L-words, especially in front of L-people. I have a sense that these L-terms are demeaning.

So in my writing, I get by without them. I use nonlawyer or "someone who isn't a lawyer."

Thus, in my quest to bring legal language to the people who pay for it, I have banished the L-words.

Monday, February 13, 2006

Using "you" when writing for nonlawyers

To write well for the nonlegal audience, you must use the word you. The expert, Rudolf Flesch, called it "The Indispensable You," and devoted a whole chapter to it in his book, How to Write Plain English. The more you resist you, the more stilted and stuffy your writing will become. You end up using phrases like "the holder," or the masculine pronouns "he" and "him" when you obviously intend to include women.

What's more, you focuses the reader's attention because it makes the text apply to the reader in a concrete way.

I think using "you" in consumer drafting is the single most important technique for making the text readable and effective. It has the effect of making the document speak to the reader, giving the content immediacy and concreteness. If you have to define who you is early in the document, that's fine. In my drafting courses, I always notice a marked improved in student work once they get past the fear of using you.

Excerpted from
Writing for the Legal Audience

Friday, February 10, 2006

Parentheticals--my view

Both views have merit, and you should read the comments for additional insights. There were some excellent comments posted.

As for me, I'm not a fan of parenthetical explanations. I'm probably just over-reacting to the heavy use I see in student and practitioner writing. But I say if you have an authority that makes a point for you, state the point then cite the authority.

But I, too, am annoyed by the citing of an authority without any explanation of why it's being cited. So if you want to cite an authority but say nothing about it, think hard. Real hard.

Ultimately, in rare circumstances, I can accept parenthetical explanations. In all fairness, I guess I should say I'm not a fan of the heavy use of parentheticals.

Thursday, February 09, 2006

Parentheticals--two views

I've abbreviated the views of two experts on legal writing below. Neither view is as all-or-nothing as I've portrayed it here, but this nicely frames the question of using parentheticals. What's your preference?

One view
Paragraphs filled with parenthetical explanations are painful to read. If a case supports a proposition you are advancing, state the basis for that support in plain, expository prose in the text without the parenthetical. Reserve parenthetical explanations for rare situations.

Another view
As a law clerk to a judge, I learned that judges consider citations without parentheticals useless. The judge I worked for would not let us prepare draft opinions without citation parentheticals. In practice, my briefs would not cite a case without a parenthetical. To avoid readability problems, put supplemental authorities with parentheticals in footnotes.

Monday, February 06, 2006

Spot the errors in a job ad

I ran across this ad a couple of years ago:

    Nameless Publishing, a publisher since 1982, of Law Books, Business Books & Training Videos has an opening for Editor-in-Chief. Duties include first line of contact with our Authors, reviewing new publications, insuring the supplements of all books are timely produced & etc. Will oversee a staff of 6 and act as in-house council for day to day matters. Must have experience in Civil Trials and show ability for writing & detail research to compliment our authors written material. Graphics background helpful. Salary based upon experience. Great benefits package, including medical insurance and 401K.

The Critique (from an able and anonymous commenter):

  1. Delete the comma after "1982" or insert a comma after "publisher" so that it is offset as parenthetical matter.
  2. Lowercase "Law Books, Business Books & Training Videos."
  3. Put a comma after "Books" and replace the ampersand (&) after "Books" with a comma and the word "and."
  4. Place a comma after "Videos" because "a publisher . . . Videos" is a nonrestrictive appositive.
  5. Lowercase "Editor-in-Chief."
  6. The duties are not constructed in parallel phrasing--"first line," "reviewing," "insuring," (which should be "ensuring").
  7. Lowercase "Authors" and delete "& etc."
  8. Change the "6" to "six."
  9. Change "council" to "counsel."
  10. Insert hyphens to make "day to day" read "day-to-day."
  11. Lowercase "civil trials."
  12. Change "detail" to "detailed."
  13. Change "compliment" to "complement."
  14. Add an apostrophe after "authors."
  15. Though most style guides are conceding that the parentheses in "401(k)" plan references can be omitted, but I'm pretty sure that the letter "k" needs to be lowercase.

Thursday, February 02, 2006

Task force plan

We will test the state bar's existing admonitory instructions later this month. In March we will test a revamped, plainer, shorter set of admonitory instructions--a set of instructions that reflects my plain-English work product. For a plain-English zealot like me, this is exciting.

We believe Texas will become the first state to test its revised jury instructions on real people. Other states have modified their instructions, and several academics have tested jury instructions on their own, but until now no state has tested them.

Wednesday, February 01, 2006

Task force meeting went well

We didn't get to the nitty gritty of words and sentences, but we made a plan to test our original admonitory instructions and laid out the dates for testing our revised instructions. We also got some good input from two Texas Supreme Court judges for the direction of our project. It was a productive meeting.

One judge did say he preferred my phrase, "Don't lie" to another's proposed "Do not give misleading or inaccurate information."