Passive voice: sorrow is offered

always apologize in the active voice.

--Roy Peter Clark, Writing Tools 25 (Little, Brown 2006).

Legal drafting: weight of graphic elements

Question
If a graphic element presents the only feasible way to state a requirement in a regulation, does the graphic element have the same legal status as text?

Answer
I cannot find any authority that a graphic element has lower legal status than text. I think a graphic element has the same status as legal text. If you want to be cautious, you could specify somewhere in the document that “the graphic elements in this text carry the same weight as the textual elements.”

Here are quotations from three legal-writing experts encouraging the use of graphic elements in legal documents. All three take it for granted, I think, that graphic elements are binding:

• Use tables, charts, and other graphics—but only if they’re immediately understandable to the ordinary reader. Bryan A. Garner, Securities Disclosure in Plain English 93 (CCH 1999).

• Often, a chart or graph is the clearest way to present complex information. Thomas R. Haggard, Legal Drafting: Process, Techniques, and Exercises 439 (West 2003).

• Complex choices are clearer if they appear in if-then tables and other side-by-side arrangements.” Thomas A. Murawski, Writing Readable Regulations 39 (Carolina Acad. Press 1999).

Legal analysis: case description

If you're going to use a case--that is, if you're going to compare it to your problem or draw legal points from it--you should describe it first. Don't give only an abstract thumbnail, and don't expect the reader to digest the story of the case while simultaneously digesting how the case applies. Describe the case first.

One expert says that for any case you plan to use, give the issue, disposition, facts, and reasoning. Mary Beth Beazley, A Practical Guide to Appellate Advocacy 81-82 (2d ed., Aspen L. & Bus. 2006). Depending on how you plan to use the case, you can follow this advice and describe the case in one or two sentences or in two or three paragraphs.

I also recommend leading into the case description with a topic sentence that introduces the case, sets it up, or makes clear why it's being described. Generally avoid the easy and routine way of introducing a case: "One trick you might use is this: avoid starting any paragraph with the classic prepositional In phrase with the case citation serving as the object of the preposition." C. Edward Good, Mightier Than the Sword: Powerful Writing for the Legal Profession 181 (Word Store 1989).

Plain English: circumstantial evidence

My own effort at plainifying the Texas Pattern Jury Charges.

Before Schiess
A fact may be established by direct evidence or by circumstantial evidence or both.

A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken.

A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

After Schiess
During the trial, you will hear two kinds of evidence. They are direct evidence and indirect evidence.

Direct evidence means a fact was proved by a document, by an item, or by testimony from a witness who heard or saw the fact directly. Indirect evidence means the circumstances reasonably suggest the fact. Indirect evidence means that based on the evidence, you can conclude the fact is true. Indirect evidence is also called “circumstantial evidence.”

For example, suppose a witness was outside and saw that it was raining. The witness could testify that it was raining, and this would be direct evidence. Now suppose the witness was inside a building, but the witness saw people walking into the building with wet umbrellas. The witness could testify that it was raining outside, and this would be indirect evidence.

A fact may be proved by direct evidence or by indirect evidence or by both.
________

My reluctance to use the word circumstantial is based on research done by Peter Tiersma:

[C]ircumstantial evidence is to some extent what I call a legal homonym: it has a fairly technical legal meaning that differs from how it's ordinarily used. Most people tend to think of circumstantial evidence as referring to weak or less reliable evidence, whether direct or indirect.

Peter Tiersma, Communicating with Juries: How to Draft More Understandable Instructions, 10 Scribes J. legal Writing 1, 35 (2005-2006).

Creative writing? Limit it in law

"Except in hard cases, the law doesn't reward creativity. It rewards logic and experience."

Gerald Lebovits, Legal-Writing Myths—Part I, N.Y. State B.J. 55, 57 (Feb. 2006).

Plain English: I grade Arizona

Sometimes a jury gets stuck and reports to the judge that it cannot reach a verdict. Often the judge reads the jurors a stiff and stilted charge (Allen charge) that tells them to go back and try again. Here is a better approach from the new and improved Arizona jury instructions:

This instruction is offered to help your deliberations, not to force you to reach a verdict.

You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.

If you still have disagreement, you may wish to identify for the court and counsel which issues or questions of law or fact you would like counsel or the court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.

I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try.

Very good, don't you think? Flesch score is 68 and grade level is 8. I give it an A-.

But just so you can see what a zealot for plain English would do, I offer my rewrite:

What I’m about to say is meant to help you decide the case, not to force you to reach a verdict.

It might help to list the things you agree on and the things you don’t. Then discuss the law and the evidence as they relate to the things you do not agree on. If it is reasonably probable that you could reach a verdict by doing this, it would be wise to give it a try.

If you still disagree, you can tell me the issues or questions of law or fact you would like the lawyers or me to help you with. If you do this, please write down the issues we could help you with.

Again, I do not wish or intend to force a verdict. I only want to respond to your request for help.

The Flesch score is now a ridiculous 88 and the grade level is 6. Did I go too far?

Word usage: elegant variation

Varying your words for the sake of variation can make the job of writing more interesting, but it can also make the job of reading more difficult. Linguist H.W. Fowler condemned the overuse of "elegant variation" in his classic book Modern English Usage:

• The fatal influence is the advice given to young writers never to use the same word twice in a sentence—or within 20 lines or other limit. . . . There are few literary faults so widely prevalent . . .

H.W. Fowler, A Dictionary of Modern English Usage 148 (2d ed., Ernest Gowers, ed., Oxford U. Press 1965).

I agree. Using synonyms for the sake of variation is not recommended in legal writing.

Better Legal Writing
Writing for the Legal Audience

Citation form: a rant

"Mastering the arcana of citation forms . . . is not a productive use of judges' or law clerks' time. The purpose of citations is to assist researchers in identifying and finding the sources; a form of citation that will serve that end is sufficient. In addition, the form of citation should be consistent to avoid the appearance of lack of craftsmanship and care." Judicial Writing Manual 24 (Fed. Jud. Ctr. 1991).

I agree with this quotation entirely. But, sadly, it does not reflect reality. People, especially judicial clerks, will judge you by your citation form, as inconsequential as it may be.

I call it the tyranny of the inconsequential, and here's why:

• Because citation form is a wrong-or-right matter, without subjectivity, it is easy to use it as standard by which to measure the caliber of a piece of writing. Yet it is a poor standard to use.
  
  
• Because citation form is created by consulting an authority and applying rules, it seems like legal work. Yet the importance of perfecting one's citation form is overrated.
  
  
• Because most lawyers consider themselves nitpickers, mindful of the small details, and strong writers, errors in citation form are unjustifiably magnified in importance.

Exhibit A: Senior attorneys who threaten to withhold an offer from a summer associate because her citation form is poor; in reality she is using ALWD form and the "mistakes" are just different abbreviation forms (Assn. vs. Ass'n).

Exhibit B: Those who believe "law review improved my writing" because it helped them perfect their citation form.

Exhibit C: Anyone who says "if the writer made a mistake in citation form [spacing, abbreviations, italicization], then the writer probably made other, substantive mistakes.

Better Legal Writing
Writing for the Legal Audience

Readability: Miranda warnings

Here are the paraphrased conclusions of a study of Miranda-warning texts used in the counties of Alabama:

• the readability of the warnings varied greatly from county to county
• a few of the warnings were very difficult to read (one was at grade level 15)
• many of the warnings were not as readable as they probably should be
• on average, versions of the warning written for juveniles were less readable

The last statement supports another study that reached the same conclusion. Are we all saying why!? right now?

The authors of this study speculate that in trying to rewrite the Miranda warning for juveniles, the writers, who, I assume, were not trained in plain English, introduced wordiness and complexity into the original text.

Rachel Kahn, Patricia A. Zapf, & Virginia G. Cooper, Readability of Miranda Warnings and Waivers: Implications For Evaluating Miranda Comprehension, 30 L. & Psychol. Rev. 119 (2006)

Readability: reading-comfort levels

Here's some readability information, which I'm always interested in, and my rewrite of the original, which is a compulsion with me.

Original
[Scholars recognize] three types of reading concepts: the independent reading level, the instructional reading level, and the frustration reading level. The independent reading level can be described as the level that an individual can read with 99% accuracy in word recognition and comprehend no less than 90% of the written material. The instructional reading level is defined as the level at which an individual can be successfully instructed, have 95% accuracy in word recognition, and understand at least 75% of the material. The frustration reading level is a level at which an individual can no longer understand reading materials and is usually marked at a word comprehension of 90% or less and a comprehension level of less than 50%. A grade level two years above the person's measured reading level is usually considered the frustration level.

Rachel Kahn, Patricia A. Zapf, & Virginia G. Cooper, Readability Of Miranda Warnings And Waivers: Implications For Evaluating Miranda Comprehension, 30 L. & Psychol. Rev. 119, 127 (2006) (citing Daniel P. Greenfield et al., Retrospective Evaluation of Miranda Reading Levels and Waiver Competency, 19 Am. J. Forensic Psychol. 75, 79-80 (2001)).

Revised
Scholars recognize three general levels of reading comfort:

Independent reading level: word recognition is 99% and comprehension is 90% or better.

Instructional reading level: (the level at which the reader can be successfully instructed) word recognition is 95% and comprehension is 75% or better.

Frustration reading level: word recognition is 90% or less and comprehension is less than 50%. At this level the reader cannot really understand the text.

A grade level two years above one's reading level is usually considered the frustration level.