Sunday, May 5, 2019
The secret of happiness is variety, but the secret of variety, like the secret of all spices, is knowing when to use it. - Daniel Gilbert
Monotony is tiresome. It's as true for speaking as it is for writing. Good writers get that. Take a look at a snippet from Malcolm Gladwell's excellent article in the New Yorker last year. Consider the ebb and flow of each sentence's length. Notice the sprinkling of punctuation marks and the differing structures. And pay attention to how this elegant variation makes you feel:
Could Gladwell have conveyed the same details using predictable, monotonous sentence lengths and structure? Sure:
The woman resides in Waseca, Minnesota. On April 29, 2017, she was washing dishes and observed a man walking through her backyard. The man had a backpack and carried a fast food bag. He was walking in the direction of the MiniMax Storage facility next to the woman's home. The woman was concerned about the man walking through her backyard. [and so on]
That's how most lawyers would have written it. But through variety--and decisions about what words Gladwell thought made good bedfellows in each sentence--those same details leap off the page and into your mind. This variety mimics good oral storytelling: It builds anticipation, pauses, and excitement. Those two longer sentences at the start pack a lot of details in, but the language and structure are so simple you can keep up. The images play out on a reel without any pauses--like it happened for the woman that night. And see how the short, punchy sentence "Something about him didn't seem right" stops you short after the long visual narrative? Then some questions and a mix of longer and shorter sentences rounds out the paragraph.
Legal writers often fall into a rut of boring patterns. They write with the same sentence structure or length, over and over, all through their brief. Some of this comes from our infatuation with short sentences. Strunk and White say to "omit needless words"--but many lawyers take that to mean "omit every possible word." Good legal writers know it's more tricky than just writing short sentences. That is just choppy. Real choppy. Like this. It starts. To get. Annoying.
The point is to have a purpose for every word, and every word that you put it in a sentence with, and every punctuation mark you include with the words. There are good reasons to combine two ideas in the same sentences: to compare, contrast, build on an idea, or emphasize similar points. Longer sentences make a more detailed point--a point that you want to explain or give some nuance and character. Other times, there are good reasons to write simple sentences that deliver a single idea. Short sentences punch. They pop.
Good writers inject smart variety to build engaging prose. Prose that sounds and feels more like good oral storytelling than it does the instructions for your vacuum. In other words, shorter to medium sentences with some occasional variety spattered in for engagement or purpose. And it's not just variety in length, but also in form. So you'll see some coordinating conjunctions, some em-dashes, and a sprinkling of semi-colons and colons.
Here is an example of a legal writer ignoring these principles. The entire paragraph is two jammed-together sentences with so many ideas spurting out that the reader is sure to get lost:
Plaintiff Randy Springer defaulted on his home loan and defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosure proceedings on Springer’s home. Springer brought this action, pro se, to stop the foreclosure, and he claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose, finally arguing that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.
Look at what a difference you can make just by paying attention to the average sentence length, including some variety, and isolating ideas. It’s not that every sentence is super short. Or that some sentences can’t have a couple ideas or a list. But the sentences tend to be shorter and simpler, and only one sentence packs in more than a couple ideas:
Plaintiff Randy Springer defaulted on his home loan. So defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosing on Springer’s home. Springer brought this action, pro se, to stop the foreclosure. He claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose. He finally argues that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.
To help you on your path to variety, I have two sets of moves for you this week. Some ideas to inject some more elegant variety into sentences, and a few ideas for punctuation, too.
Step 1: Keep your sentences mostly on the shorter side (less than 20 words).
Most writing authority suggests averaging about 20 words or less per sentence. I see that in the best legal writers’ briefs and the research agrees. You are better off keeping most of your sentences shorter and simple so that each idea is spoon-fed to your reader. This is not an exact science, it’s just a way to give yourself a sense about when sentences start becoming so long that the ideas may tend to trail off and readers can get lost.
If 20 sounds like a small number, it’s really not. You can pack a lot into 20 words. 20 words can be too many.
Here’s a 20-worder:
The court issued three declaratory rulings that each implicated a different legal doctrine or theory, each in a different way.
That’s still a lot of content, and good sentences will often come in at less.
Step 2: Avoid long sentences close to each other that will create too much drag.
The occasional elegant-long sentence can be useful. Longer sentences help you contrast or compare ideas or concepts, they allow you to weave together ideas that are more persuasive taken together, and they are a vehicle to offer examples for your reader. Like the sentence you just read.
So don't shy away from the occasional longer sentence, just make sure you punctuate and organize it so well that your reader won't get lost. Em-dashes, semi-colons, a coordinating-conjunction comma, or a colon are all good tools for creating clear divisions and organization in your sentences. These punctuation marks can be almost as clear as a period.
And if you do use an occasional long sentence, avoid piling them on top of each other. So avoid this:
In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill. Dec. 715, 359 N.E.2d 125 (1976), where our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added.) Confronted with that legal authority, defendant stated in its reply to plaintiff's’ response that its prior reference to its ‘‘ ‘obligations’ ’’ under section 1(a)(3) was ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’
Two heavy sentences together create too much drag. Instead, break up the ideas as much as you can with periods or hard punctuation breaks (like semicolons, colons, or a comma and conjunction):
In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill.Dec. 715, 359 N.E.2d 125 (1976). There, our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added). Confronted with that legal authority, defendant attempts to sidestep by pointing to language in the statute: ‘‘ ‘obligations’ ’’ under section 1(a)(3) refers ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’
Step 3: Include some variety in sentence-length every paragraph or so.
The final basic mistake that many legal writers make is to ignore the power of variety. Fluency studies suggest that some variety in sentence length (and, as we will see next, punctuation) makes reading more engaging and easier to get through.
So when you’re editing, make sure each sentence is not nearly-identical in length. You are looking for a blend of mostly shorter, the occasional very-short, and the occasional elegant long (that is still organized with hard-break punctuation to keep ideas straight).
Punctuation is part of the machinery of your sentences. And refining this machinery has a payoff. Using punctuation right can make your writing far more fluent, more engaging, and it can also help you highlight ideas so that they stick.
Step 1: Vary your punctuation.
Just like our sentence length, the best legal writers and science both suggest spicing up your prose with different punctuation. You shouldn’t randomly sprinkle semicolons and em-dashes throughout your paragraphs. But do replace the occasional period or comma with a different device—where it will be helpful to organize, compare, or contrast ideas.
Step 2: Use semicolons to contrast two ideas or concepts.
Semicolons separate two independent clauses and the occasional semicolon helps make your writing engaging; it also helps form a connection between two ideas.
So use this mark when you want your reader to see two ideas compared, contrasted, linked, or elaborated on. This last use is often ignored; semicolons can be a great way to continue building on an idea while keeping each of the constituent parts neatly separated.
Here is an example of a contrast semicolon from Justice Kagan:
The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not.
And here is an example of the semicolon-as-expander, using the mark to build on an idea:
Deceit such as tall tales that defendants told about Q-Ray Ionized bracelets will lead some consumers to avoid treatments that cost less and do more; the lies will lead others to pay too much for pain relief or otherwise interfere with the matching of remedies to medical conditions. - Judge Easterbrook
And this classic:
To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to setup a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater… - Judge Learned Hand
Step 3: Use em dashes to emphasize a critical point or idea.
The em-dash is the neon sign of punctuation. Use em-dashes for emphasis at the end of a sentence for a dependent clause, or to set off an interjecting thought with emphasis.
Em dashes also create white space in your sentence (another reason it's so good at emphasizing). This is why the em-dash is the most powerfully-emphasizing mark of them all (even more than the !, which, in any event, you can't use in your brief anyways).
Look at how these authors smartly put within em-dashes the most critical themes of their documents. Like semicolons, don’t waste this power by em-dashing both the important and mundane. People pay attention to what’s inside the em-dash:
When those words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our right to be taken seriously.
Or this one:
A review of the history of alienage jurisprudence, with a particular review of Graham—both what it said and how it has been applied (and not applied) in the past forty years—suggests that it is time to rethink the doctrine. Judge Bybee
Step 4: Use colons to explain a general concept with more specificity.
The colon is as academic as it sounds: It’s used to teach. Use colons to introduce a concept or term and its explanation or definition. The colon is brilliant because it functions consistently for your reader: They always know what to expect.
But like the other marks, don’t use this one arbitrarily. Too many writers insert colons where commas or semicolons should go. This is not getting the most out of this mark:
If they see a colon: they know they will be reading an explanation …
Because the colon isn’t really set up a nice concept/explanation relationship. So why not just keep it simple and use a comma?
The judge filed two orders: One dismissing the claim and the other awarding fees.
Step 5: Parentheses do the opposite of the em-dash: they deemphasize.
The parenthesis is like whispering to your reader. Parenthesis, aside from being used as parentheticals, deemphasize whatever you put in them. Use these when you think some sort of aside is valuable to subtly prod your reader, without drawing their attention too closely or distracting them.
Plaintiff alleges no facts (nor could he) to support this claim.
This aside probably isn’t important—there are no critical details or facts that you need your reader to remember—so a parenthesis is less distracting and a good choice.
Finally, because so many legal writers struggle with some of the basics, I’ve put together a simple chart that reminds you how and when to use each of them—lest you distract your reader with a mistake.
Separates two independent clauses (full sentences) with a coordinating conjunction. “Joe went to Saipan, and he loves reading.”
Sets off an introductory phrase. “Knowing it was warm, Joe brought shorts.”
Sets off a nonrestrictive clause (one that can be removed from the middle of the sentence). “Joe began, knowing he should, by talking about commas.”
Coordinate adjectives (both adjectives modify the same thing, not each other). “The yellow, angry bee.” But not: “The bright, yellow bee.”
Separates days from years. “December 12, 2018”
To set off a quotation. “The court held as much repeatedly, ‘….’”
NOT: to join full sentences without a conjunction (comma splice). “Joe went to Saipan, he likes to read.”
NOT: Anywhere else generally.
Separate two independent clauses (full sentences). “Joe loves Saipan; he loves the air.”
Separate list items where the items have commas in them. “Joe loves: reading, but only in bed; writing; and science.”
To join two separate but related clauses or phrases—often to explain or add more detail to the first. “Joe loves Saipan: He comes here every year.”
If what follows the colon is a complete sentence, capitalize the first word.
To introduce a list. “Joe loves the following punctuation marks: commas and em-dashes.
To introduce a quote. “The court held as much: “….”
Use these more: separate long sentences with lots of ideas by breaking them up into shorter sentences. Your readers will thank you.
Can be used to set off interjecting phrases or clauses in the middle of a sentence—or at the end.
Use these to emphasize important points in your document—like themes, critical issues, etc. “The plaintiffs filed the motion—three days too late—and then moved to dismiss.”
Use in the same way you use em-dashes, but when you want to deemphasize a point. “The court noticed the error (for reasons not relevant here) and corrected it.”
Used for page ranges mostly. P.30-32.
Used anytime you connect two words together, like phrasal adjectives. “The blue-black haze hung around the room.”
Periods and commas always go inside these. “I wonder what he did there,” he said.
Quote material up to 50 words. Then it becomes a block quote without quotes.
Remember, quotes within quotes use a single mark: ‘.
Check apostrophes (‘)
Collective nouns are treated singularly. Team, family, board. You use a single apostrophe when two subjects both share the same trait: Susie and Joe’s religion (if they are both Christian); Susie’s and Joe’s religions (if they have different ones)
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.