Wednesday, February 20, 2008

Text beneath point headings

A reader asks--
In a brief with numbered point headings, should the text immediately after each point heading summarize the point made in that section of the brief, even if it is just a restatement of the point heading in slightly different form? Or should you start the text following a numbered point heading as if the heading itself is the topic sentence of the next paragraph?
I consulted my colleagues, who are experienced teachers of legal writing and who include two former federal judicial clerks, and they all said the same thing, with which I agree:

Make the first sentence beneath a point heading an appropriate topic sentence; do not rely on the point heading itself as a sort of topic sentence. Even if doing it this way makes you feel that you're being redundant, that's fine.

We think that judges and their clerks, not to mention legal-writing teachers, often read the point headings in the table of contents to get a sense of the issues and arguments. Then when they (and we) read the argument section, they skip the point headings.

Wednesday, February 13, 2008

Summaries in legal writing, part 1

16 Austin Lawyer 9 (Feb. 2008)

Every legal document should begin with a summary of some kind. This post highlights the importance of up-front summaries by quoting the experts and then offers advice in three before-and-after examples.
All legal writing should be front loaded. It should start with a capsule version of the analysis. It should practice the art of summarizing.
Joseph Kimble, First Things First: The Lost Art of Summarizing, 38 Ct. Rev. 30, 30 (Summer 2001).

By establishing the main points of a document before launching into a detailed analysis of the points, you show readers what information to look for.
Frederic G. Gale & Joseph M. Moxley, How to Write the Winning Brief 107 (ABA 1992).

Why is it important for legal writers to lead with their conclusions? There are three main reasons. . . . [1] It's more convincing. . . . [2] It's easier to read for the first time. . . . [3] A hasty or dimwitted reader can still understand it.
Steven D. Stark, Writing to Win: The Legal Writer 8-10 (Main Street Books 1999).

These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:
  • give key information early
  • save tedious factual details for later
  • prefer specifics to abstraction for legal issues
Here are the examples, before and after:
Before--key information missing
Enclosed please find evidentiary documents, medical records, and affidavits in support of our settlement demand in the personal-injury case concerning Wes Anderton (“claimant”) and your client, Ranchland Properties, Inc. (“RPI”).
Don't leave readers wondering “what's the demand?” They'll skip to the end and read that first anyway.
After--give key information early
This letter contains our settlement offer of $132,500 with supporting medical records, affidavits, and letters.
Before--necessary but secondary factual detail
On February 10, 2005, the Court of Appeals sustained John Doe's (Doe) complaint that the State's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The State timely filed a motion for rehearing on February 14, 2005. The Court of Appeals denied the State's motion for rehearing on March 2, 2005. The State then timely filed its petition for discretionary review (PDR) on March 16, 2005. This Court granted the State's PDR on September 28, 2005, with the notation that no oral argument would be permitted.
Five dates in one paragraph is a lot of secondary detail to wade through.
After--save tedious factual details for later
The Court of Appeals sustained John Doe's complaint that the state's notice of enhancement was untimely and remanded the case to the trial court for a new punishment hearing. See [citation]. The state sought a rehearing, which the Court of Appeals denied. The state then filed a petition for discretionary review; this Court granted the petition but without oral argument.
Before--an abstract issue
On September 13, 2005, defendant was convicted in the Jackson County Court of a violation of MRS 28-445(b). He was sentenced to 5 to 20 years. On appeal to the Court of Appeals, the sentence was affirmed. We reverse.
When framing a legal issue, some detail is necessary to get the reader grounded.
After--prefer specifics to abstraction for legal issues
The defendant was convicted of delivering between 50 and 225 grams of cocaine, which presumptively requires a prison term of 10 to 20 years. But the trial court concluded that there were substantial and compelling reasons for departing from the statutory mandate, and imposed a term of 5 to 20 years. We hold that the trial court inappropriately considered a factor that was not objective and verifiable: the defendant's expression of remorse. We thus reverse and remand to the trial court for resentencing.
Coming soon: more advice and more examples.

Tuesday, February 05, 2008

Plain-English advocate picks on lawyers. Ouch.

Why do lawyers write so that no one can understand them? They say it is because they need to be precise, and that their language has been honed by centuries of litigation. But this is baloney. The real reason is that, although they are paid for their skill with words, most lawyers are dull and clumsy writers who have not broken the bad habits they learned as students.

--Mark Adler of Clarity, an international association promoting plain legal language.

Monday, February 04, 2008

Choosing topics for sentences

16 Austin Lawyer 13 (Dec. 2007 & Jan. 2008) (updated from a post on Nov. 2, 2007)

This piece is about dates, witnesses, and cases and their frequent appearances in topic sentences.

Dates are not topics
In reading several briefs recently, I noticed that the facts often had a series of three, four, or even five consecutive paragraphs beginning with a date. “On September 30, 2006, . . .” Next paragraph: “On December 17, 2006, . . .” And so on.

It's common advice to omit a flurry of irrelevant dates: “Avoid over-chronicling--most dates are clutter.” So says Judge Mark Painter in his book The Legal Writer: “We don't know what . . . if any, dates we should remember.” But even when dates are relevant, they're not the real topics. When you begin a paragraph with a date, you're saying the rest of the paragraph is about the date. That's usually not true.

Witnesses are not topics
I sometimes see facts sections in which a series of paragraphs each begin with the name of a witness. It looks like this: “Dr. Cynthia Rao examined the claimant and testified that . . .” Then “Dr. Robert Eaton, a psychiatrist, examined the claimant . . .” And so on.

It's common advice to avoid presenting the facts by witness: “Never include the deadly witness-by-witness summaries of testimony that some brief-writers favor.” Judge William Whitbeck, Michigan Court of Appeals. More to the point, are the witnesses truly the topics you are writing about? Usually not.

Cases are not topics
In documents containing legal analysis, I often see a series of case descriptions beginning with “in” and a case name: “In Whitmon v. McCarthy Supply Co., . . .” Then “In Anderson Consulting, Inc. v. Genier, . . .” And so on.

Again, there's already solid writing advice on 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 181 (1989). In most legal analyses, the cases are not the real topics.

Why dates, witnesses, and cases?
Lawyers use dates, witnesses, and cases as topics for an obvious reason: it's easy. It's a default approach to organizing. I say default because the topics are already there. You do not apply fresh insight to determine the topics yourself and organize accordingly; you use the topics you've already got--dates, witnesses, and cases.

When you default to an approach that is already there, you do save time, energy, and effort. But you walk straight into this universal paradox of writing: easy to write is hard to read.

Good writing is hard
The reverse of the paradox is also true: easy to read is hard writing. So when you write, figure out what the real topics are, organize around those topics, and use them in your topic sentences.

For example, in a brief responding to a claimant's appeal of a denial of disability benefits, your topics are probably the impairments the claimant alleges. Organize around those impairments and insert the dates and the witnesses as necessary.

In a memorandum discussing the standards for equitable adoption, your topics are the factors the courts consider. Organize around those factors and cite the cases as support for your assertions.

Creating your own topics is hard work, but it produces readable, persuasive writing.

Writing for nonlawyers

16 Austin Lawyer 13 (Nov. 2007)

When writing for nonlawyers, some of us maintain a misguided sense of professionalism, which can lead to an unnecessarily formal writing style that ignores audience needs.

Young lawyers, I forgive. They don't always know which legal words and constructions are necessary and which are fluff. Besides, they're learning a new language. Their goal is to master legal language, whatever it is. So when young lawyers try to “sound like a lawyer,” I forgive them.

But experienced lawyers ought not write for nonlawyers in a fluffy, legalistic, hyper-formal style. The expert's goal should be to shed legalese. The expert's goal should be to communicate, not to impress. The expert's goal should be to not “sound like a lawyer.” Besides, almost no one is impressed by traditional legal language: Latinisms, Elizabethan usage (that's the 1500s), and ten-dollar words--not to mention long sentences, stilted constructions, and over-abstraction.

Yet I've had lawyers tell me they need to write in a formal, legalistic style so clients will be intimidated; the intimidated client needs the lawyer. I've had lawyers tell me clients prefer and expect traditional legalese; it reassures them. And although no lawyer has ever said it to my face, some lawyers take pride in sounding stuffy and formal because that's the way lawyers are supposed to sound. It's as if the writing carries this not-so-subtle message: “I'm a lawyer, and don't you forget it.”

I question these positions. And I'm not alone in suggesting that writing in a way that confuses the client is a bad thing: “We cannot in justice to our job expect the client to employ us to interpret our own documents nor should we require him to consult our professional brethren for this purpose.” Sidney F. Parham, Jr., The Fundamentals of Legal Writing 72 (1967).

Note the date: Mr. Parham said that 40 years ago.

You might ask what's wrong with having a big vocabulary of sophisticated words? Nothing's wrong with having--it's the using:
So if you have a big vocabulary and know a lot of rare and fancy words, that's fine. Be proud of your knowledge. It's important in reading and in learning. But when it comes to using your vocabulary, don't throw those big words around where they don't belong. . . . It's a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.
Rudolf Flesch, How to Write Better 25, 35 (1951).

Ultimately, I believe clients prefer and respect those who can write in everyday English:
If the clients can read the contract more easily and resolve contract questions themselves, doesn't that mean fewer billable hours for the lawyer? My experience is that clients--on both sides of a negotiation--respect the lawyer's ability to express ideas clearly. When they see good writing, they are less likely to try to do it themselves. While most business people can fake “legalese,” writing in plain English takes practice. It takes real talent to express complicated legal, technical, financial, and commercial ideas in a straightforward way.
David T. Daly, Why Bother to Write Contracts in Plain English?, 78 Mich. B.J. 850 (1999).

As Daly says, writing clearly about complicated topics is hard work. But it's worth trying.

Mind your prepositions

16 Austin Lawyer 13 (Oct. 2007)

We should write sentences that convey our meaning and keep the reader engaged. We should write sentences that flow. That can be hard in legal writing, but we can learn. This article discusses two preposition problems that can spoil engaging, flowing sentences. When you use excessive prepositions and compound prepositions, you chop your sentences up and bog your reader down.

Excessive prepositions
A sentence with too many prepositional phrases can become stilted and choppy. See Joseph M. Williams, Style: Ten Lessons in Clarity and Grace 42 (8th ed. 2005). A stilted and choppy sentence is hard to read and hard to read quickly. Consider this one:
  • A knowledge of correct trial procedures is the duty of all of the members of the bar of this state.
This sentence has 5 prepositional phrases in 21 words. And you'll agree, I hope, that it's an awkward little thing. But now we have better terminology; we don't just say it's awkward, we say it has too many prepositions. When we edit, we focus on removing them:
  • All state-bar members must know correct trial procedure.
Now we have no prepositions and a more vigorous sentence. Here's another example:
  • There is no current estimate of the number of boxes of records in possession of the schools.
(You think I'm making these examples up? No. This is a real sentence written by a real lawyer.) Here we remove only four out of five prepositions--because not all prepositions are bad--and we get a stronger sentence, although we do have to add an actor:
  • We have not estimated how many boxes of records the schools have.
So when you edit, look for short bursts coming at you in waves. Maybe you have too many prepositions. Or look for prepositions specifically. You'll engage your readers more effectively if you cut excessive prepositions.

Compound prepositions
Compound prepositions are longer, fancier versions of regular prepositions. Here are my favorites:

in order to
for the purpose of
with reference to
in connection with
with regard to
with a view toward
in the event of
on account of
by means of
in conjunction with

If you want to sound stuffy and stiff, sprinkle these throughout your writing. See Bryan A. Garner, The Winning Brief 243 (2d ed. 2004). They have a formal flavor:
  • We prepared the interrogatories in conjunction with the Popsey matter hastily, in order to meet the discovery deadline.
In this sentence, in conjunction with and in order to serve no purpose but to make the sentence longer and more formal. Simplify them:
  • I prepared the interrogatories for the Popsey matter hastily to meet the discovery deadline.
Here's another simple idea made fluffy with compound prepositions:
  • Gail said she wanted to discuss something with me in connection with my legal memo with a view toward improving my writing.
For writing that moves--that flows--prune the compound prepositions:
  • Gail said she wanted to discuss something with me about my legal memo, so I could improve my writing.
When you edit your document, spot and remove excessive prepositions and compound prepositions. Your readers will appreciate it.

All-capitals not necessarily conspicuous

“Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”

In re Bassett, 285 F.3d 882, 886 (9th Cir. 2002).

Hat tip to Ken Adams.