Saturday, April 21, 2018
I've heard lawyers urge on more than one occasion: "write like Hemingway, not Faulkner." I think this advice is mostly sound. William Faulkner is known for long, ornate sentences that--while carefully crafted--are not always easy to read. Here's just a few lines of a Faulkner sentence:
There was a wisteria vine blooming for the second time that summer on a wooden trellis before one window, into which sparrows came now and then in random gusts, making a dry vivid dusty sound before going away: and opposite Quentin, Miss Coldfield in the eternal black which she had worn for forty-three years now, whether for sister, father, or husband none knew, sitting so bolt upright in the straight . . .
So yes, that is not the sort of clear, simple writing that skilled lawyers aim for. A judge may have to read that three or four times to appreciate what's going on.
And in terms of sentence shortness, Ernest Hemingway easily has Faulkner beat. After all, Hemingway is best known for, as he called it "writing straight." He packed so much in each word that he needed only a few to get the point across:
You did not kill the fish only to keep alive and to sell for food, he thought. You killed him for pride and because you are a fisherman. You loved him when he was alive and you loved him after. If you love him, it is not a sin to kill him. Or is it more?
There is a lot to be said about "short sentences" like this. Shorter sentences are easier to follow and easier to process. Even in Hemingway's literary example that is so. You probably absorbed Hemingway's points much quicker than you did Faulkner's. This is equally true for legal writers. Short and concise sentences are easier to read. This is why great legal writers rally around Strunk and White's famous directive to "omit needless words." It's also why we love Justice Robert's famous short sentence: "So too here."
But there is a feature of both Faulkner and Hemingway's writing that is not as helpful to lawyers. And it's a feature that often steers legal writers wrong when they fixate only on cutting every word possible from their sentences. This feature has to do not with the words and sentences themselves, but with the ideas lurking behind them.
On the surface, sentences all look similar. They are the same letters, same words, over and over, just arranged in different orders. But underneath, sentences are sophisticated idea-producing machines. You remove one word from a sentence, plug in another, and an entirely different idea spurts into your reader's mind. They are as complex of a machine as the assembly of nuts and bolts that make up your car.
Literary authors tune their sentences to produce some wild ideas. For them, it's a good thing to tinker until something interesting comes out. And maybe it doesn't even matter what those idea are. Some of the best literary sentences produce a tissue of interconnected ideas that we readers spend hours (or centuries) untangling. If two people read the same sentence and have different ideas--all the better.
But as legal writers, we need our idea-machines to run more precisely. Our readers are busy, harried, and use our writing to complete practical tasks. They don't have time to search for the ideas. And frankly, we don't want them to use their imagination. If our reader takes the wrong idea from a sentence, that may mean the difference between winning and losing for us.
When it comes to producing particular ideas, shorter sentences are usually better. They keep our reader focused on the point that we are trying to deliver. But this is not always so: short does not always mean simple. Just because a sentence is short does not mean you have control over the ideas it will trigger in your reader's mind.
Let's go back to Hemingway. One of his most famous sentences is just six words:
For sale: Baby shoes, never worn.
What ideas do you take from this sentence? Tragedy? The death of a baby? The morbid realism that life most go on even after a horrible event? Interestingly, this quote may not even be Hemingway's. It may come from an article written in the 1920's, titled "For sale, baby carriage, never been used.” The backstory is nothing so depressing as you might think. The author simply thought it sounded like a good title for a story.
On the other hand, the quote may also come from a more depressing newspaper ad and followup article written around the same time. The ad read "Baby's hand made trouseeauo and baby's bed for sale. Never been used." And there, indeed, tragedy had struck:
The point is that the ideas delivered by that six-word sentence are amorphous--maybe you took away what the author intended, maybe not. This sort of imprecise writing isn't a good thing for a lawyer. If you're a lawyer writing about clothes put up for sale after a baby's death, you are better off with:
The parents were so poor that when their baby died they had to sell his shoes.
For sale: Baby shoes, never worn.
The first version is a bit longer, but the key is that your reader doesn't have to dig for the idea you want. If you want your reader to know that the parents were poor and use the shoe sale to exemplify that--then make sure you deliver precisely that idea.
Or take another excellent example of this idea-generation problem:
I never said she stole my money.
Depending on the context and your reader, the ideas delivered by this short and unassuming sentence are legion:
I never said she stole my money. (Someone else said it.)
I never said she stole my money. (I didn't say it.)
I never said she stole my money. (I only implied it.)
I never said she stole my money. (Someone did, not her.)
I never said she stole my money. (I considered it borrowed.)
I never said she stole my money. (Only that she stole money—not necessarily my own.)
I never said she stole my money. (She stole something of mine, not my money.)
So what's the takeaway for us legal writers?
First, remember that while non-legal writers have lots of great tools for us, our practical aim for delivering ideas can be quite different. “Literature is not the goal of lawyers,” wrote Justice Felix Frankfurter. And “[t]he law,” said Justice Oliver Wendell Holmes, “is not the place for the artist or the poet.” In many ways, good writing is good writing. But you must balance your efforts to write well with your need to deliver concrete and specific ideas to your reader. The flash is not always worth it.
Second, your default style should be shorter, concise sentences that deliver a single idea. Shorter sentences are not only easier to read generally--but they give you more control over which ideas your reader will absorb. The more words, clauses, and yes, ideas a sentence has--the harder it is to control your reader's focus and the greater the risk that they will get distracted. Shorter, simpler sentences allow you to dish one carefully-chosen idea to your reader at a time.
So put yourself in your reader's shoes and build sentences that will deliver one idea at a time--and the idea you choose. Take this snippet of short sentences from a trial court opinion. You get one idea at a time, and a straight-forward one at that:
Courts don't make rules. Courts follow rules. The attorneys ask that we create a new rule out of whole cloth. That should give us pause.
Third, all that said, a short sentence is not always a clear sentence. And for lawyers desperate to get a busy judge to simply understand, the clarity of your ideas is priority number one. So sometimes you may need an extra word or two to isolate that precise idea you need.
Take a paragraph penned by Justice Gorsuch. The ideas conveyed are simple, clear, and leave little room for interpretation--but they are not always as short as they could be:
“Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. So Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs[.] . . . Yet the prison refuses to open the doors of [its] sweat lodge to Mr. Yellowbear alone. [A]nd so we have this litigation. [T]hose convicted of crime in our society lawfully forfeit a great many civil liberties. [But] Congress has instructed that the sincere exercise of religion should not be among them . . .”
Each sentence delivers a straightforward idea. Yellowbear faces a life in prison. He does so because he murdered his daughter. He turned to his faith . . . very little room for interpretation or confusion.
If nothing else, I think the simple act of realizing that your sentences are constantly churning out ideas can be helpful. And remembering that short sentences do not always equal simple sentences.
Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.