Sunday, March 3, 2019
- Rev. J Martin
There's a carefully-guarded secret among judges and senior attorneys. It's a secret you won't often hear them mention out loud, lest they hurt your feelings. But nearly all of them are in on it.
The secret is that your bad legal writing goes in the trash.
Tossing your brief may seem harsh. When I have this talk with my law students, they certainly think so. But can you blame your readers? If it's a judge, they have 300-plus cases on their docket. Drowning in briefs and motions and exhibits--if your brief isn't worth reading, why would they?
Briefs can go bad in many ways, but usually, it starts with the words. Many are dull, flimsy, or flat. In a word: boring. And the sentences bury their points in piles of needless nouns, descriptors, and glue words, with the reader shouldering the work of sorting the useful from the useless. The combo of boredom and denseness convinces the reader that their time will be better spent tracking down the answers on their own.
But while the wrong words can tank your brief, the right ones can transform it into something powerful: A vehicle to change the minds of even your most skeptical readers.
I've talked about a magical method to pare down your sentences to the words that matter--content word editing. This simple technique is popular and works. But we talked only about cutting the excess, not how to improve the words themselves.
So I thought I'd share some methods for polishing up your words. But before going there, consider a few principles that prop up these methods--straight from cognitive science.
First, we need our readers to remember what we write. And we are working uphill. We all hear about studies showing that readers retain only a tiny fraction of what they read. Imagine how true that is for our legal readers, who are harried and distracted to begin with. One way to make our words memorable is to use ones that will be easy to visualize. By one study, words that created visual images were retained over 50% better than blander versions. Another helpful principle is to remember the power of narrative: People think in stories and remember in stories. So words that tell vivid narratives stick better.
Second, our writing should be easy to process. Fluency refers to how easy it is for your reader to process your writing. It helps your reader get wrapped up in your voice and shut out the distractions and skepticism. Simple and familiar words--and transitions--are just some of what makes your writing fluent.
Third, persuasion works best when it's subtle. People don't like being told what to think. So you're better off choosing words that lead your reader to a helpful perspective--but without forcing them into it.
Let's see how we can put these principles to work in our words.
Nouns to remember: Familiar, Short, and Specific
As Stendhal said: "Only great minds can afford a simple style." Simple words are usually the best ones. They are easier to read and easier to process. Why did President Lincoln's best speeches use the shortest, simplest, and most familiar words? In the Gettysburg Address and Second Inaugural Address (widely considered to be his two best), nearly 75% of Lincoln's words have a single syllable. That style works.
To achieve this easy reading: Prefer words with few syllables, words that are familiar, and words that are specific rather than vague. This explains why so many people cite the following Justice Roberts passage as among their favorite pieces of legal writing:
Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.
This passage is full of the simple and familiar: "a lone man on the corner," and "cash handed over." And Justice Robers opts for specific words over vague ones. So rather than say that the officer made "many" drug busts, Roberts says he made "fifteen, twenty" of them.
To write like this, prefer the shorter, more familiar, and more specific.
First: Go with shorter, more familiar words
Try opting for shorter versions of words--and versions that will be more familiar to your reader (not words that we read only in judicial opinions and financial reports). Below are a few examples. For a longer list of I've put together, click here.
"Money" or "cash" instead of "funds"
"Pay" instead of "remunerate"
"About" instead of "regarding" or "with regard to"
“After” instead of “subsequent to” "thereafter"
"Do" instead of "accomplish"
"Gave" instead of "accorded"
"So" instead of "accordingly"
"Next to" instead of "adjacent to"
"Allow" instead of "afford"
"Say" or "said" instead of "expressed" or "statement"
“Here” instead of “instant case.”
“Also" instead of “furthermore” or “additionally”
"Some" or "many" instead of "a number of"
“Shows" instead of “demonstrates”
“Fire” instead of “terminate"
"To" instead of "as a means of"
"The brawl" instead of "the incident""Stole $500" instead of "theft of funds""Three broken ribs" instead of "serious injuries""The police's search" instead of "the underlying act""Remember last year's stock price dip" instead of "Remember the event that happened last year"
Verbs that move: Visual, Active, and Targeted
Verbs are the engines of our sentences. Their potential to create imagery and engagement is profound. And harnessing their power is a cornerstone of great writing.
First: cut bland "state of being" verbs; prefer active and visual verbs.
The "state of being" verbs tell your reader little, save that you "are" or that something "is." The verb is silent, letting other words do the work. Here are several:
Is, Am, Are, Was, Were, Be, Being, Been, Have, Has, Had, Do, Does, Did, Shall, Will, Should, Would, May, Might, Must, Can, Could
We can rev up our writing by simply looking for chances to replace these silent verbs with more visual, active ones. I put together a list of hundreds of concrete and active verbs to give you some inspiration.
Check out how Justice Holmes does it. Instead of using bland verbs like most lawyers:
“The statute has severe restrictions that only affect plaintiff.”
Justice Holmes uses concrete and active verbs that move:
“The statute bristles with severities that touch the plaintiff alone.”
Here are some other great examples of lawyers and judges nixing bland state-of-being verbs for better ones.
First, Judge Jennifer Dorsey:
“Patrol officers running license plates in a drugstore parking lot stumbled on a maroon Saturn.”
Judge Carlos Bea:
“They are alleged former child slaves of Malian descent, dragooned from their homes and [enslaved] on cocoa plantations.”
“Fraud unravels everything.”
Judge Jay Bybee:
“Congress drew the lines clearly…”
Or take two passages from the Obergfell decision. First, Justice Kennedy:
“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
Now Justice Roberts:
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision . . . Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Don't worry about replacing every one of your state-of-being verbs, but figuring out when a state-of-being verb is the culprit creates a problem—and finding a better, more powerful verb to replace it—is what will make you a better writer.
Second: pick verbs that will evoke targeted images.
Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit farther, become comfortable with the subtle effects you can achieve by selecting one verb over another.
This first example is the bland "state of being" version we shouldn't prefer. The second is active in that at least you see the man moving. But the third version is an example of a targeted verb--a verb meant to evoke a specific sort image (Note: Several of the above examples, like "unraveling," are targeted verbs that match up with the content).
State of being: The woman is walking on the platform.
Active: The woman walked onto the platform.
Targeted: The woman strode along the platform.
Here is another set of examples:
State of Being: Jory is a fan of country music.
Active: Jory likes country music.
Targeted: Jory treasures country music.
And one more:
State of being: There are three things that may be helpful to the judge.
Active: Three things may help the judge.
Targeted: Three things may convince the judge.
If you don't believe there are enough verbs to evoke just the right image you're looking for, peruse your options for our first verb above, "walk":
Third: turn nominalizations into verbs.
Always look out for nominalizations, also known as Zombie Nouns. These are verbs in nouns' clothing, often ending in -ion. For example:
“The court made a determination on three of the counts”
“The court resolved three of the counts”
“The cases are not in agreement on this point”
“The cases disagree on this point”
Descriptors that disappear: Subtly use descriptors and only when they help
Nothing bogs down your writing like excessive descriptors. Please: Let nouns and verbs do the heavy lifting. Too many adjectives--and especially adverbs--trigger your readers' skepticism, slow down the pace, and disrupt your fluency. There is a reason that Stephen King and other great writers urge us to kick these.
After all, as A.A. Patawaran points out:
A world without adjectives would still have the sun rising and setting, the flowers blooming, the trees bearing fruits, the birds singing, and the bees stinging.
This is a perfect example of descriptors bogging down the writing:
The Government repeatedly and voraciously argues that under the statute there is very broad authority for EEOC to decide precisely how to engage in, and exactly when to give up on, conciliation.
Excising those and focusing on strong nouns and verbs cuts clutter and hones the points (courtesy of Justice Kagan):
The Government highlights the broad leeway the statute gives the EEOC to decide how to engage in, and when to give up on, conciliation.
Or take this snippet from another federal brief:
“Plaintiffs really offer nothing new here: their conclusory and baseless allegations that “they alleged defendant’s knowledge” is the very epitome of a quite desperate ploy."
Much more effective without the descriptors:
“Plaintiffs argue nothing more than that ‘they alleged defendant’s knowledge.’ This legal conclusion is not the ‘specific fact’ that Rule 12 requires.”
"This is a case of a corporate giant bullying a small business."
“The plaintiff snapped three bones in his arm, twice.”
“Courts review motions within days.”
“The lawyers mustered every argument they could.”
That's not to say that you should never use descriptors. They can be a force for good. For one, descriptors occasionally convey important information that the nouns and verbs can't muster on their own. But on those rare occasions when a descriptor will help--choose carefully. Empty intensifiers, like "very, "really" and "clearly," rarely add anything worth adding. Good descriptors will convey something useful.
For example, here, by using the word "explicitly," the court is pointing out that a prior case put something down in writing:
[T]his Circuit, almost two months before the district court's ruling in this case, explicitly declined to apply this framework. Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003).
And sometimes a brilliant descriptor can pack a wallop, used sparingly and artfully:
The wall the court erect[ed] between church and state has become even more warped and twisted than I expected.
Sometimes descriptors can also help distinguish:
The testimony is damning; the video is very damning.
Replace long, boring transitions with fresher ones
The best transitions are the ones you never notice. They do their guiding work, but they also contribute important information as a good citizen of the sentence. The abrupt, repetitive transitions that many lawyers use are often useless--simply telling the reader that "something" happened rather than delivering any helpful information about how concepts or thoughts connect to one another. Take this example from a state supreme court filing:
Furthermore, the defendant's argument fails under governing case law. Such caselaw includes, among other things, this court's own precedent. Moreover, the defendant raises this argument far into the briefing, in a reply. Additionally, this briefing....
These empty transitions are verbose and do little to increase your writing's logical flow. Legal writers sometimes forget that the skill of transitioning between sentences and topics is not a matter of simply sprinkling in transition words.
Consider using (1) shorter transitions, (2) fresher transitions, and (3) transitions in different forms--like beginning your sentences with helpful context that explains how the next thought connects up with the prior one. And don't just insert transitions blindly: sometimes a sentence doesn't need a transition because the connection is obvious. Look at some select Justice Kagan transitions (not an "additionally" or "moreover" within sight):
Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter. For example, some municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for signs that identify the address of a home or the name of its owner or occupant . . . In other municipalities, safety signs such as ‘Blind Pedestrian Crossing’ and ‘Hidden Driveway’ can be posted without a permit, even as other permanent signs require one . . . Elsewhere, historic site markers—for example, ‘George Washington Slept Here’—are also exempt from general regulations . . . And similarly, the federal Highway Beautification Act limits signs along interstate highways unless, for instance, they direct travelers to ‘scenic and historical attractions’ or advertise free coffee.”
Here is a great example of each transition tactic at work. First, poor transitions:
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. The math program is a very challenging part of the school and key to why it is so successful. The plaintiff points out that discriminatory policies exist in the math program, which benefit only males.
In 1990, the United States sued the Commonwealth of Virginia, alleging that VMI's violated the Equal Protection Clause of the Fourteenth Amendment by benefiting females unfairly.
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. One of the school’s tough programs, the math one, is key to its success. But this math program discriminatorily benefits only males.”
That discriminatory program spurred the United States to sue the Commonwealth of Virginia for violations of the Fourteenth Amendment.
"Courts apply a two-pronged test to determine feasibility. If a defendant fails to submit adequate evidence he fails to meet the first prong of the two-pronged test."
"Courts apply a two-pronged test to determine feasibility. The first prong is not met if a defendant fails to submit adequate evidence."
Here are some other examples of smooth transitions that don't rely on the plodding "additionally":
“There’s no jurisdiction here. Setting that aside…”
“Be that as it may…”
“Same here: …”
“For example…for one…for another….”
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.