Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, September 14, 2019

Simple Tools to Avoid Confounding Legal Writing

1562063-200"'Do you believe in clubs for young people?' someone asked W.C. Fields. 'Only when kindness fails,' he replied.”

- The Linguistic Analysis of Jokes

Ambiguous sentences suck. You spend hours coming up with brilliant legal arguments. What could be worse than a reader misinterpreting them? To us writers, our sentences often seem straight forward, even simple. But unless you're careful, folks reading the same words can be left scratching their heads.

Take this famous sentence:

I saw a man on a hill with a telescope.

Simple. Short words. Active. But confusing. This sentence could mean, depending on the context:

  • A man is on a hill, and I’m watching him with my telescope. 
  • A man is on a hill, who I’m seeing, and he has a telescope.
  • A man is on a hill that also happens to have a telescope on it.
  • I’m on a hill, and I saw a man using a telescope.

Spotting sentences that make sense to you—but could be confusing for a fresh reader—is a skill all the great legal writers employ. You must have it. Otherwise the best points in the world risk falling on deaf ears.

Often the solution comes down to figuring out precisely what idea you are trying to convey—then using your common sense to build a sentence that delivers that specific idea and nothing else. Sometimes it will require a few more words, but that’s ok. Your readers would much rather understand then read a shorter but confusing sentence.

So in our telescope example, we could say:

I looked out my bedroom window and saw a man peering through his telescope up at the stars.

Yes, it’s longer. But your reader absorbs the specific idea you care about. And that is the gold.

A lot of things can lead to ambiguity, but below are three common culprits and some ideas for avoiding them.

  1. Word ambiguity

Folks usually talk about two sorts of sentence ambiguity: ambiguous words (lexical ambiguity) and ambiguous sentence structure (syntactical ambiguity). 

Lexical ambiguity is when you use a word that can have more than one meaning or refer to more than one thing or person.

I went to the bank. (The bank could be a place where money is kept, or it could be the edge of a river).

I sent the bill to John. (The bill could be the amount of money John owed or it could be the bill for a cap so John, who repairs caps, can repair one.)

Ambiguous pronouns are a particularly pernicious culprit of word ambiguity. Lawyers use “it” or “he” in confusing ways all the time:

The two companies filed a brief and a motion, and it was indecipherable.

Who or what does the “it” refer to? We don’t know. And now your reader must backtrack to find clues to figure it out. Not good for busy legal readers.

To avoid this problem, carefully edit each sentence for word ambiguity--looking out for ambiguous pronouns especially, but also for any other words that can have double meanings. You will usually want to rewrite the sentence to make the word meanings clear:

The two companies filed a brief and a motion, and the motion was indecipherable.

These ambiguities also give you chances to just write a better sentence overall, making better use of emphasis or clarity:

The two companies filed a brief—and a motion that was indecipherable.

Then there are words that, by definition, are just always ambiguous. Take “appears.” This is a lawyer favorite. “Plaintiff appears to” do this and “Plaintiff appears to” do that. Or “seem.” The cases “seem to hold that no allegation is needed.” 

What do these words mean? Did the plaintiff do it or not? Did the case hold that or didn’t it? The point: Your reader doesn’t know exactly what idea to take away when you use imprecise words like these. For “appear” and “seem,” at best, you are telling your reader that you don’t know something. That’s about it. 

Imprecise words also signal that you’re trying to force your reader what to think—but you can’t quite bring yourself to say it. Not only are you making your reader skeptical by forcing the point, you don’t even have the confidence to do it persuasively. 

So watch out for words like these (and really, any other word that won’t tell your reader precisely what idea to take away): 

  • Indicate
  • Regarding
  • Concerning
  • Seemingly
  • Apparently
  • Suggestive

And then write it better.

  1. Sentence structure ambiguity

Syntactic (AKA grammatical) ambiguity is nearly as common as ambiguous words. This is where the structure of the sentence or the glue words (like prepositions and other syntactical fillers) create some confusion.

A simple example is:

Visiting relatives can be exhausting. (What is exhausting: when relatives visit you, or when you visit relatives?)

Let’s stop controlling people. (Does this mean ‘Let’s stop people who control others’, or ‘Let’s stop controlling other people?)

The solution here is the same: Edit carefully with an eye towards potential confusion. Short sentences can hide these ambiguities—because there is not enough grammatical guidance to make the point clear—as can long, complicated sentences with lots of punctuation. It’s about empathizing with a fresh reader and developing sensitivity to which of your writing quirks can be confusing. Then editing, editing, and more editing!

  1. Modifiers

Misplaced modifiers are the final common misstep. Modifiers generally act on the words that immediately follow them. And this is what readers expect. When your reader isn’t sure what is modifying what, you have a problem.

Watch what happens when we move around a modifier in that last paragraph:

Misplaced modifiers are commonly the final misstep.

The meaning is ambiguous—and perhaps downright wrong. Is it really that that “misplaced modifiers” are commonly the “final” misstep? As opposed to commonly being the first or second misstep?

Modifiers at the end of sentences tend to be the worst:

Misplaced modifiers are the final misstep commonly.

What is common? The misstep? The finality of the misstep?

Only is a fun modifier—and one you should pay attention to. Lawyers probably misplace the word only more than any other. The more words separating only from what it’s modifying, the more awkward and ambiguous. 

In this next sentence, if we move around the only, we can see how the meaning (and confusion) change:

The court only ignored a single problem.

Vs.

The court ignored only a single problem.

Vs.

Only the court ignored a single problem

And the worst—putting the only at the end:

The court ignored a single problem only.

Each has different meanings, and the last example is downright confusing (although not uncommon to see from even great legal writers).

Here are a few more examples of misplaced modifiers from real legal writing:

Children who are abused frequently are not protected.

Or:

All vehicles without a permit, saloons, hatchbacks and MPVs, may not enter.

Just edit for clarity by moving the modifiers next to what they are modifying:

Abused children are frequentlynot protected.

All vehicles including saloons, hatchbacks and MPVs without a permit may not enter.

Dangling modifiers are a species worth a final mention: A modifier that is describing something not even in the sentence. Like:

Ignoring the rules, the case wrapped up.

The answer here is to move the referent back into the sentence:

The court dismissed the case because the plaintiff ignored the rules.

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

 

https://lawprofessors.typepad.com/appellate_advocacy/2019/09/three-ways-better-words-can-boost-your-legal-writing-.html

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