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Legal Writing Guidelines for Law Students and Attorneys

published December 07, 2016

By Author - LawCrossing
Published By
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Summary: This article details the dos and don’ts of legal writing for law students preparing for a career or attorneys who need to hone their skills.
 
Legal Writing Guidelines for Law Students and Attorneys
Grammatical skill provides the basis for effective writing, but this constitutes only the first step. To write effectively, you must communicate effectively. Remember the discussion between the March Hare, the Mad Hatter, and Alice:
 
"Take some more tea," the March Hare said to Alice, very earnestly.
 
"I've had nothing yet," Alice replied in an offended tone: "so I can't take more."
 
“You mean you can't take less," said the Hatter: "It's very easy to take more than nothing."
 
"You should say what you mean," the March Hare went on."
 
"I do," Alice hastily replied, "at least I mean what I say-that's the same thing, you know."
 
"Not the same thing a bit!" said the Hatter. "Why, you might just as well say that 'I see what I eat' is the same as I eat what I see.'!" 
 
Communication skills are even more vital for lawyers than for people like Alice, for language is the primary tool of the legal profession, and lawyers are held to a higher standard of its use than other people.
 
But most entering law students tend to minimize the importance of legal writing. For one thing, they have been writing all of their academic lives and they tend to feel competent in that skill, while they view the courses that teach "the law" with appropriate awe, for these courses are new and strange.
 
However, the sense of competence in writing that most students feel may be unwarranted, for many students have majored as undergraduates in disciplines requiring little writing-disciplines like engineering and accounting. Other students have written substantial amounts of expository writing, but writing of a kind different from what they will be doing in law school. Until now they have been rewarded with A's for imaginative, emotional, discursive writing; now they will need to write logically, persuasively, factually, concisely.
 
To make the transition to effective legal writing even more difficult, law students are often assigned casebook reading containing court opinions that are badly written. Some of the opinions are old, written in a style and language no longer appropriate. Even some of the more recent opinions they read are not models of effective writing. They may contain verbiage, jargon, Latinisms, and other characteristics for which the legal profession is often
 
*From Lewis Carroll, Alice's Adventures in Wonderland, stanza 8.
 
The opinions assigned for reading are selected not for their linguistic excellence but for their legal significance, and new law students tend to mimic the bad writing rather than the good.
 
As law students, you will learn that in legal writing, unlike much other writing, your personalities should remain in the background. Creativity and discursiveness, which perhaps earned you kudos as undergraduates, should give way to clarity kind logical analysis. "Style" should not be visible; matter should dominate manner.
 
The story of the appearance of Caesar and Cicero before the Roman Senate is appropriate. When Cicero, a brilliant orator, finished his speech urging the Romans to attack the invading Gauls, the senators applauded enthusiastically, declaring it eloquent. But after Caesar spoke, they rose to their feet and cried, "Let us fight the Gauls!" Legal writing, like Caesar’s speech, should call forth action, not praise.
 
The material in this article should help you move your readers to action; the three sections will help you write clearly, effectively, and with propriety. These divisions sometimes overlap, but together they constitute the ABC's of good legal writing: accuracy, brevity, and clarity.
 
1. Writing It Clearly
 
A. Use Periodic Sentences Cautiously; Vary Your Sentence Structure.
 
A periodic sentence in English is structurally somewhat similar to a typical German sentence, which, as Mark Twain facetiously remarked, "goes on for several pages before it comes up at the end with the verb in its mouth."
 
Not all periodic sentences are bad. They are effective as long as they are not misused. Periodic sentences provide structural variety to your writing, and, strategically used, they induce your reader to continue reading in order to reach the important idea you have cleverly placed at the end. But long, involved periodic sentences on dull topics confuse more than they enlighten.
 
Periodic sentences are one of the three types of sentence structure found in English, stylistically speaking. The other two types are loose and balanced. You probably learned about these three types of sentence structure when you were in junior high school, but you may welcome a quick review.
 
In a loose sentence, the subject and predicate are close together; the subject tells what or who the sentence is about, and the predicate tells what the subject did. The typical sentence order of a loose sentence is subject-verb-object. (The predicate is composed of the verb and object, or if the verb has no object, only the verb.) In loose sentences, subject and predicate are close together, without interrupting language separating them. The following sentences are loose in structure, although their grammatical structure is, respectively, simple, compound, and complex:
 
Subject Predicate
 
This office will consider you’re proposed to dredge the area.
 
Verb object
 
Subject predicate Subject predicate
 
The defendant arrived, but the plaintiff failed to appear.
 
Verb object
 
Subject predicate Subject predicate
 
Although the owner had insurance, it did not cover the damages.
 
Verb object
 
In lengthy or complicated sentences, the loose sentence provides stopping points along the way, at which the reader understands what the writer means thus far. In such sentences, loose sentence structure is a favor to your readers, unlike loose sentences; periodic sentences provide no stopping places. Because periodic sentences contain 'interrupters,' that is, clauses separating the subject from its predicate, or introductory clauses even before the subject of the sentence is stated, the reader must read the entire sentence before learning what it is about. Here is a periodic sentence:
 
On a dark night, when the moon was invisible and the stars were heavily shrouded in clouds, when only muffled earth sounds interrupted the stillness that surrounded me as I walked through the deep woods alone, deep in thought and unaware of any human presence, suddenly a raucous cry split the silence.
 
In the sentence above, the subject (a raucous cry), the verb (split), and the object (the silence) are delayed until the end. But the subject-matter of the sentence was probably sufficiently interesting to keep you reading. Unfortunately, the subject-matter of legal writing is usually neither exciting nor suspenseful. But legal writers seem to love the periodic sentence; certainly many of them overuse it. Consider, as a horrendous example, the following excerpt from § 25 of the Judiciary Act of 1789:
 
A final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be reexamined and reversed or affirmed in the Supreme Court of the United States upon a writ of error. (Emphasis added.)
 
In this sentence, the subject (a final judgment or decree) appears in line one. But you had to read 15 lines further before you reached the verb (may be re-examined) and the remainder of the predicate. In between are dumped qualifying clauses. Neither interest nor suspense motivates you to read the sentence to the end, only the dogged determination (or the need) to underrating the material.
 
Interest the current version of this earliest antecedent: 28 U.S.C § 1257. The drafters of 28 U.S.C § 1257 have substituted loose sentence structure for the periodic structure of the earlier draft and added the qualifiers in a list at the end. Note how much clearer the current version is:
 
Final judgments or decrees rendered by the highest court of a State in which a decision could be had may be reviewed by the Supreme Court as follows:
 
(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
 
(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
 
(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
 
If you use periodic sentence structure in long, complicated sentences, you may confuse yourself as well as your readers. In the following sentence, from a student memo, when the writer reaches the end of his sentence, she uses the referent Mt' to refer to a subject that she has forgotten to set down. Here is the sentence:
 
In Peairs v. Florida Publishing Company, where the court held the newspaper publisher liable for injuries resulting from a pediatrician tripping over a wire loop left on a public parking lot by a newsboy, if the publisher was aware of the conduct of the newsboys and failed to take proper action to remedy the situation, even though the newsboys and carriers were called independent contractors, if the publisher meddled or interfered it was deemed an agent-principal relationship; accordingly we can establish a similar relationship in the instant case.
 
This sentence calls to mind a dinner-table rule enforced by my mother: Never talk with your mouth full. Here the writer, her mouth full of qualifying clauses, is making an almost-unintelligible statement because she is trying to say five things at once:
 
(1) The Peairs court held that an agent-principal relationship existed between the defendant Florida Publishing Company and its newsboy-employee, despite the publisher's designation of its newsboy as an independent contractor.
 
(2) The agent-principal relationship existed because the publisher had the right to interfere in the activities of its newsboys.
 
(3) As "principal," the employer has the duty to remedy a dangerous situation that the newsboy as "agent" caused.
 
(4) Therefore the newspaper publisher is liable for the injuries of a pedestrian who tripped over a wire loop that a newsboy-employee left on a public parking lot.
 
(5) A similar relationship exists in the instant case.
 
Put these sentences together, and you will have a paragraph that is longer than the single sentence from the student memo. But the message is also clearer. You may combine the five sentences into three longer ones and retain clarity; but you should avoid the periodic structure that caused the problem in the first place. Here is a possible re-write in loose sentence structure.
 
The Peairs court held that the Florida Publishing Company, a newspaper publisher, was liable for the injuries of a pedestrian who tripped over a wire loop left on a public parking lot by a newsboy, despite the publisher's claim that newsboys were "independent contractors." The court reasoned that the relationship between the publisher and the newsboys was that of agent and principal because the publisher had the right to interfere in its newsboys' actions. Therefore the publishing company as principal should have taken appropriate action to remedy the dangerous situation of which it was aware and which was caused by the newsboy as agent. A similar principal-agent relationship exists in the instant case.
 
Finally, here is another periodic sentence, this one from a court opinion, which shows that the opinion-drafter can lose his way in the maze of clauses if he uses periodic structure for a sentence replete with parenthetical insertions. Only a brave reader would attempt to unravel it:
 
The perjury charged in the indictment is in substance that in a certain cause theretofore pending in the Circuit Court of the _ Judicial Circuit for _ County, wherein the State of _ was plaintiff and one Riley D_was defendant, in which the said Riley D was charged with unlawful intercourse with an unmarried female person of previous chaste character, who was at the time of such intercourse under the age of eighteen years, in which such cause the defendant herein, Raiford B., was sworn in due form of law as a witness to tell the truth, the whole truth, and nothing but the truth touching the matters in issue in said cause, the said Raiford B. did willfully, knowingly, falsely, and corruptly during the progress of said trial testify as follows: [Emphasis added]
 
With this example of a periodic sentence, I rest my case. Use periodic sentences for variety in sentence structure, and to create suspense or expectation, but for complicated ideas, choose loose or balanced sentence structure.
 
Balanced sentences give your writing grace and polish, and may make it memorable. In the balanced sentence, the parallel structure and repetition of sentence patterns underline the similarity or contrast of the ideas presented. The most easily recalled passages of literature contain balanced sentences. Here is a passage from Ecclesiastes-.
 
To everything there is a season, and a time to every purpose under the heaven:
 
A time to be born, and a time to die; a time to plant, and a time to pluck up what is planted;
 
A time to kill, and a time to heal; a time to break down, and a time to build up;
 
A time to weep, and a time to laugh; a time to mourn, and a time to dance . . .
 
Benjamin Franklin's Poor Richard gave lawyers a drubbing-in balanced sentences that are still quoted:
 
  • A countryman between two lawyers is like a fish between two cats.
  • God works wonders now and then; Behold, a lawyer and an honest man!
  • A good lawyer, a bad neighbor.
  • Here comes the orator, with his flood of words and his drop of reason!
 
Contrast the statements of Benjamin Franklin and John Hancock during the drafting of the Declaration of Independence. Franklin's balanced construction has made his comment a household saying; Hancock's observation is recalled only by historians:
 
  • Hancock: "We must be unanimous; there must be no pulling different ways; we must all hang together." 
  • Franklin: "Yes, we must all hang together or we will all hang separately." 
  • Winston Churchill knew the power of the balanced sentence. Contrast his and Sir Anthony Eden's statements during World War II: 
  • Eden: "We shall not let go until we have done the job, and we welcome all those who will give us a hand to finish it." 
  • Churchill: "Give us the tools and we will finish the job."
 
Finally, in The Nature of the Judicial Process (1921) p. 129, Judge Cardozo used a balanced sentence to make an important point that he wanted to be remembered:
 
Judges have the power . . . though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.
 
Note that in the last sentence, Judge Cardozo used periodic structure to make his point effectively. By the use of inversion in that short sentence, he placed his most important idea last, emphasizing it by its position. More will be said later in this article about placement for emphasis.
 
B. Use Connectors Carefully.
 
1. Language as connectors
 
As important as your ideas themselves are the words you use to connect and relate them. If your readers do not understand your point, you might as well have omitted it. Some connectors are conjunctions (like but, for, and, or); others are adverbs (like hence, therefore, however, since, although); sometimes numbers are connectors, sometimes a word repeated and preceded by 'the' or 'this.' Sometimes connectors are not words at all, but punctuation marks.
 
Although you will seldom need to consult a list to select transition language, here are some of the words most commonly used to express the following relationships:
 
  • Temporal relationships: then, meanwhile, next, before, later, in a few days, until, then, when, after, following . . . 
  • Spatial relationships: above, below, nearby, beyond, opposite, adjacent to, adjoining, far from . . . 
  • Addition: furthermore, moreover, besides, also, again, in addition to, further . . . 
  • Causal relationships: because, since, consequently, so that, in order to, for that reason . . . 
  • Logical relationships: nevertheless, however, therefore, hence, thus, despite, but . . . 
  • Comparison and contrast: similarly, likewise, in a like manner, yet, but, on the contrary, notwithstanding . . .
 
Another way to provide transition is to repeat a word or phrase used in the previous sentence or paragraph. The repetition of "theories" in the following excerpt is an illustration.
 
Several theories regarding the intent of the equal protection clause are discussed in this section of the paper. Differences in these theories, their weaknesses and strengths, and a proposal for alternative theories to avoid the unfavorable results of these theories will also be discussed.
 
(This device should be used sparingly, for it can cause repetitiousness.) All of this may seem elementary, and indeed it is, but too often, connectors are absent in legal writing. In fact, the better you know your subject, the more apt you are to omit connectors, probably because your mind inserts them even when you have not written them down. Here is a paragraph from the thesis of cm L.LM. Student who knew his subject very well-too well, in fact, to communicate it clearly:
 
Taxpayers and Congress play games with tax laws. Congress enacts a tax law disallowing deductions for certain activities. Taxpayers' lawyers find loopholes in the law so as to provide deductions for their clients. Congress promulgates an amendment to the law to close the loophole. The depreciation deduction allowed under Sections 167 and 168 permitted taxpayers to include borrowed amounts in determining the adjusted basis of property. When taxpayers reduced their tax liability by depreciation deductions through heavily mortgaged property, tax shelters resulted. Congress enacted Section 465 in 1976 to close the loophole.
 
The same paragraph, with connectors in boldface, is longer, but also clearer:
 
Taxpayers and Congress play games with tax laws. First, Congress enacts a tax law disallowing deductions for certain activities. Then taxpayers' lawyers find loopholes in the law so as to provide deductions for their clients. Next, Congress promulgates an amendment to the law to close the loopholes. And so it continues. For example, the depreciation deduction allowed under Sections 167 and 168 permitted taxpayers to include borrowed amounts in determining the adjusted basis of property. This depreciation resulted from depreciation deductions through heavily mortgaged property. Therefore, in 1976, Congress enacted Section 465 in order to close that loophole.
 
Here is another actual excerpt from a law student's analysis of a case in which a workman sued the manufacturer of a machine in which he injured his hand:
 
The plaintiff worked in a factory. He injured his hand while operating machinery provided by the defendant. The plaintiff sustained a crushed hand. The court stated that the plaintiff did not act out of choice. The court reasoned that the plaintiff's occupation required that he do so. The court reasoned that it was possible that plaintiff had been ordered to use machinery in the way in which he did in the course of his employment. The court said that liability for an injury belongs to the party who is in the best position to eliminate dangers, in this case, the manufacturer.
 
Besides the absence of connectors, you probably noticed the monotonous repetition of one kind of sentence structure in the excerpt above: Subject-Verb-Object. Variety of sentence construction is important to good legal writing. You will notice that sentence variety, as well as connectors improve the re-write:
 
The plaintiff, a factory worker, crushed his hand in a machine he was operating and brought suit against its manufacturer. The court found that the plaintiff was not responsible for his injury because his occupation required that he operate the machine. Thus he did not act out of choice and may even have been ordered to use the machine in the way in which he did. In finding for the plaintiff, the court also stated that liability for injury belonged to the party best able to eliminate the danger, in this case the manufacturer.
 
Between paragraphs, transition is even more important than between sentences within a paragraph, for the reader expects that all sentences in a paragraph are somehow connected and transition merely shows him how. But the new paragraph signals either a new topic or a new direction for the previous topic. In the following excerpt, the repetition of "decision" tells the reader to expect a new direction for the previous topic:
 
In its decision in Smith v. Bagwell, the Florida Supreme Court described punitive damages as recompense to the sufferer as well as punishment to the offender and an example to the community. It described compensatory damages as those which arise from actual and indirect pecuniary loss, mental suffering, medical expenses, and bodily pain and suffering.
 
The court, in this decision, seemed to confuse the principle of compensatory damages-the means of compensating the victim for injury to his person-with the principle of punitive damages-punishment for the offender and a deterrent to the community.
 
The first draft of any writing is apt to lack transition, particularly when the writer knows his subject so thoroughly that he is unaware that transition language is missing. The problem is compounded when, as is often true in legal writing, the subject is complex. So as you read your first draft, add guideposts so that your reader can follow you to your destination.
 
2. Commas as connectors
 
The omission of the final comma in a series is now common. But 1 would include that comma in legal writing because its absence may cause problems. For example, in the sentence, "All of my assets are to be divided equally among my children: Mary, Joan, Edward and Mark," how many divisions did the testator intend? Should the assets be divided three ways, with Edward and Mark sharing a third? If the testator had added a final comma before and, there would have been no ambiguity.
 
The absence of the final comma in the following sentence creates an absurdity:
 
  • The director of nursing explained that the clinic had been closed because of the dilapidated condition of the building, lack of facilities and vermin.
 
The absence of the final comma in the next sentence raises a question about meaning:
 
  • Professor X enjoyed fishing in the Gulf of Mexico, traveling, the study of Egyptian art and history.
 
The addition of one comma would have clarified the following probate document language:
 
  • The undersigned, _, has received full payment of the claim filed in this proceeding against the above estate on_, 19_.
 
It is not clear whether the claim was filed at the stated date or payment was received then. Add a comma, and you know that the claim was filed at that date:
 
  • The undersigned, has received full payment of the claim, filed in this proceeding against the above estate on _, 19_.
 
To state that payment was received on the stated date, move the "date" phrase:
 
  • The undersigned,_, has received full payment on_,19_, of the claim filed in this proceeding against the above estate
 
Commas that are misplaced may be as damaging as commas that are omitted. See, for example, the thirteenth amendment to the Constitution, which states:
 
  • Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
 
A literal reading of this amendment would lead to the conclusion that both slavery and involuntary servitude can exist in the United States as punishment for the conviction of crime. The drafters intended no such meaning, yet the amendment has been uncritically copied into the constitutions of some state governments, perpetuating the error in the placement of the comma. Correctly placed, the commas would provide the intended meaning:
 
  • Neither slavery, nor involuntary servitude except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
 
3. Appropriate language to indicate causality
 
In the following sentences, and is a poor choice:
 
(1) If the landlord is guilty and violates the rule, his conduct constitutes constructive eviction.
 
Re-Write;
 
  • If the landlord is guilty because he violated the rule, his conduct constitutes constructive eviction.
 
(2) If the defendant can prove that the statute was vaguely written and did not give adequate notice, the federal statute would override it.
 
Re-Write:
 
  • If the defendant can prove the state statute was vaguely written in that it did not give adequate notice, the federal statute would override it.
 
4. Replace vague connecting words with specific words.
 
(1) After studying hard, we found the final examination easy.
 
Re-Write: Because we studied hard, we found the final examination easy.
 
(2) Having committed a heinous crime, the defendant received the maximum sentence,
 
Re-Write: Because he committed a heinous crime, the defendant received the maximum sentence.
 
(3) Try and do your best.
 
Re-Write: Try to do your best.
 
C. Say It Affirmatively.
 
1. Negative statements lack force.
 
They merely deny, so they are less forceful than affirmative statements. Therefore, when possible, state your ideas affirmatively. Compare the following pairs;
 
He did not carry out his responsibility.
 
He failed to carry out his responsibility.
 
He did not fulfill his duty.
 
He failed in his duty.
 
He did not carry out the contract.
 
He breached the contract.
 
2. Negative statements can be confusing.
 
Here is one from the Model Penal Code § 5.01(2):
 
Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law. (Emphasis added.)
 
With the three negatives removed, the statement is clearer:
 
Although other conduct may also suffice, the following conduct, if it strongly corroborates the actor's criminal purpose, shall be held sufficient as a matter of law.
 
Here are two sentences from different court opinions. Count the negatives and you can see why the sentences are almost unintelligible:
 
Whether the case of an intrusion by a stranger who does not have title, on a peaceable possession, is not one to meet the exigencies of which the courts will recognize a still further qualification or explanation of the rule requiring the plaintiff to recover only on the strength of his own title, is a question which has not as yet been decided by this court.
 
This rule should not be construed so as to entitle a person to recover for damage in a case where the proof shows that the defendant could not by the exercise of due care have prevented the injury, or where the defendant's negligence was not a legal cause of the result complained of by the plaintiff. [Emphasis added,]
 
Try to unscramble the above sentences by deleting some negatives. Then check the possible re-writes below to see whether your understanding of what each means is similar to the author's:
 
(1) This court has not yet decided whether the case of an intrusion by a stranger who lacks title, on a peaceable possession, meets the exigencies required under the rule that a plaintiff can recover only on the strength of his own title.
 
(2) Under this rule plaintiff is entitled to recover for damages only when it is proved that the defendant, by exercising due care, could have prevented plaintiffs injury, or when defendant's negligence was a legal cause of the results plaintiff complains of.
 
Unfortunately, you will find many opinions that contain confusing negative constructions. These tend to bewilder those law students who come from disciplines relatively free of that kind of writing. One way to make the sentence comprehensible is to substitute one affirmative for every two negatives in the sentence. (This strategy seems to work most of the time, but it is not guaranteed.) Another device is to change "not . . . unless" language to "only . . . when."
 
Rule-of-Thumb: In your own writing, delete as many negatives as you can from each sentence you have written, when you have used more than one negative.
 
3. Negative statements can be ambiguous.
 
Each of the following statements has at least two opposite meanings:
 
Florida's educational problem is not being able to attract and hold its teachers.
 
Possible meanings:
 
(1) Florida's educational problem is that it is unable to attract and hold its teachers.
 
Sentences like these recall George Orwell's remark that the statement "To my mind it is a not unjustifiable assumption," merely means "I think" (in "Politics and the English Language").  In these re-writes, the verbs were also changed from passive to active voice in order to clarify the meaning.
 
(2) Attracting and holding its teachers is not Florida's educational problem.
 
I have not been able to accumulate a sizable bank account due to the size of my salary.
 
Possible meanings:
 
(1) I have not been able to accumulate a sizable bank account, and my failure to do so is the size of my salary.
 
(2) I have been able to accumulate a sizable bank account despite the size of my salary.
 
4. Don't use a// with negatives.
 
Another confusing combination is all plus the negative. For example, when you say "All cats are gray," you are dealing with totality. Not so when you add the negative. When you say "All cats are not gray," you are actually saying that some cats are. Your assertion is now synonymous with "Not all cats are gray." To assert totality, you must say, "No cats are gray." That sentence is the opposite of "All cats are gray."
 
The writer of a recent bulletin board notice was unaware of this problem. The notice read:
 
On Tuesday, June 8 and Wednesday, June 9, all regularly scheduled classes will not meet.
 
What the notice said was that some regularly scheduled classes would meet. How should the notice have been worded?
 
However, as with all "rules," this one has some exceptions. The negative statement is useful when you want to convey lukewarm enthusiasm—or even intentional ambiguity. For example, when he was questioned about a former government official who was under indictment. President Reagan said, "Mr. _ is not a dishonest man."
 
A law colleague tells me he responds reluctantly to requests of undeserving students for a recommendation, by writing, "I cannot recommend him too highly." The ambiguous negative is useful to damn with faint praise, to endorse with a degree of doubt. The professor of legal writing who says, "This is not bad writing," does not necessarily mean it is good writing. A 1975 court, in permitting the removal of a kidney from an incompetent man, used the negative to express its reasoning that, "... the transplant is not without benefit to him." 
 
Perhaps the final word on the use of negative constructions should be this: Someone once defined a lady as a woman who never insulted anyone without intending to do so. Similarly, never use the ambiguous negative without intending ambiguity.
 
In re Guardianship of Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180.
 
D. Use Expletives Sparingly.
 
Everyone knows the lay meaning of expletive. (You learned when you were five years old that expletives were words not to use, at least in your mother's presence). Although grammatical expletives are quite different, you are still advised to use them sparingly in legal writing. Grammatical expletives are words that are necessary to fill a slot that English syntax requires be filled. In the following two sentences, there and it are expletives:
 
  • There is no reason to delay.
  • It is easy to draft pleadings.
 
In these sentences, there and it contain no meaning. They are used merely to fill the necessary subject slot at the beginning of the sentences. In the sentences, the expletive construction does not impair the meaning. But often in legal writing the substitution of an expletive for the real subject prevents the reader from knowing who or what the real subject is. These sentences were taken from students' writing:
 
(1) There is a cause of action because the passenger suffered from the reckless conduct of the driver.
 
(2) There is the possibility that intoxication would be a defense if intent and knowledge are necessary elements of the crime.
 
(3) It was indicated in Zell that there is almost universal acceptance of extrinsic parol evidence.
 
(4) There is a strong suspicion that a crime occurred, due to the appearance of the room.
 
Missing from these sentences is an answer to the question, "who?" (or "what?"). Who had a cause of action? Who believed that intoxication might be a defense-and for whom? What indicated? And who suspected?
 
The way to eliminate those expletive constructions that may obscure your writing is to tell the reader who did what to whom. When you do that, you are usually putting a person or group of persons in the subject slot. A re-write of the four sentences above provides that information:
 
(1) The passenger has a cause of action against the driver because of the driver's reckless conduct.
 
(2) The accused person might plead intoxication as a defense if intent and knowledge are elements of the crime.
 
(3) The Zell opinion indicates that courts almost universally accept extrinsic parol evidence.
 
(4) Police detectives strongly suspect that a crime occurred, due to the appearance of the room.
 
Even when you are not using expletives, you need to guard against failing to tell your reader "who did it." Law students tend to make actions, rules, etc.
 
I call the following "whodunit" constructions. They came from law students' papers:
 
(1) In Garratt v. Dailey, the question of intent in terms of subjective desire was resolved.
 
(2) The conceded volitional act was mentioned by Justice Hill.
 
(3) The moving of the chair was an act reflecting intent to cause the fall.
 
(4) The primary issue in this case was Brian's intent. His version that no intent existed was accepted by the court.
 
A state supreme court judge complained to me that this kind of construction conceals "a secret actor." In the sentences above, not only the actor, but the receiver of the action is unclear. I returned the students' papers with the following questions about the sentences:
 
(1) In Garratt v. Dailey, the court found that Brian (intended/did not intend) to DO WHAT TO WHOM?
 
(2) Justice Hill said that WHO CONCEDED THAT HE DID WHAT TO WHOM?
 
(3) When WHO moved the chair, he intended to DO WHAT TO WHOM?
 
(4) The primary issue was whether Brian intended TO DO WHAT TO WHOM? The court accepted Brian's version of the facts: that Brian did not intend TO DO WHAT TO WHOM?
 
Legal disputes almost always represent disagreement among parties. Courts decide these disputes by applying legal rules to the particular actions of those parties. If you omit the parties from your discussion of legal problems, you are omitting the key factors.
 
But, as usual, there are exceptions to the rule that you should take care to say WHO did WHAT to WHOM. Experts use expletives to advantage when they want to leave the actor out. For example, consider the statement by William Kunstler, who was representing the son of Marlon Brando, who had shot and killed Brando's daughter's boyfriend. Kunstler reportedly said of the killing, "There has been a tragic shooting here."
 
E. Put Modifiers Where They Belong.
 
Modifiers belong next to the words they modify. If you fail to follow this rule, you may suffer serious consequences. For example, one hospital asked patients being admitted to sign the following consent form:
 
I hereby authorize the Physician or Physicians in charge to administer such treatment and the surgeon to have administered such anesthetic as found necessary to perform this operation which is advisable in the treatment of this patient.
 
In this case, a patient sued after the surgeon removed her reproductive organs during surgery for a simple appendectomy. No attempt had been made by the surgeon to enlarge the scope of the operation. The court held against the hospital, stating that the consent form the patient signed was so ambiguous as to be almost worthless. The reason: the modifying clause, introduced by which. Because that clause followed the word operation, the court construed it to mean that the operation was advisable, though the hospital intended it to mean that the patient consented to the anesthetic and treatment that were advisable.
 
Courts have been asked to construe modifying language so often that they have given it a legal name: the Doctrine of the Last Antecedent. Under this doctrine, courts presume that drafters place modifying words and phrases next to what they intend to modify. For example, a court construed the language "an ad valorem tax on a leasehold interest or governmental property that is measured by income or volume of transaction," to mean that the governmental property was measured, although the drafter intended to say that the ad valorem tax was measured. Placing the clause beginning with that next to the wrong word caused him to lose the lawsuit.
 
In another case, a court held that only observance of a safety rule was required by a statute, when the court construed the following language, "... where injury is caused by the willful refusal of the employee to use a safety appliance or observe a safety rule required by statute." The drafter had intended to say that both were required by statute, but careless drafting lost his case.
 
In this latter example, placing a comma after the word rule would have avoided the problem. The language would then read, "... where injury is caused by the willful refusal of the employee to use a safety appliance or observe a safety rule, required by statute." For the Doctrine of the Last Antecedent states that where no contrary intention is indicated, referential language intended to apply to all antecedents, not only the closest, should be separated from the antecedent language by a comma. The comma after rule would signify, under both the rules of grammar and the Doctrine, that use of a safety appliance and observation of a safety rule were required by the statute.
 
Law students misplace modifiers, sometimes with unintended humor. The following appeared on assigned papers:
 
  • The proposed site was deemed unsafe due to contamination by a leading university scientist.
  • Plaintiff was a passenger in a motorbus raped by the chauffeur.
  • The robber entered the cafe and threatened the cashier standing at the register with a small-caliber handgun.
  • Available in the administrative offices is a list of law students broken down by sex.
 
Can you correct the problems in the above sentences by rearranging them so that the modifiers are placed where they belong?
 
Sometimes the misplaced modifier is a one-word adverb. The writers of the following sentences misplaced the adverbs properly, probably, and merely. Can you correct their errors?
 
  • Since no one was injured by the delay, the doctrine of laches was not properly invoked. (The writer meant that the court was correct in not applying the doctrine.)
  • The plaintiff was probably killed by the defendant's negligence.
  • He only died last week.
 
Even casebook authors sometimes carelessly err in the placement of modifiers, especially in using the small adverb only. The following sentences are from an evidence casebook:
 
  • Rule 608(b) only limits extrinsic evidence from coming into the trial if a party's sole purpose . . . is to attack the witness.
  • Courts at common law only relaxed the identity of parties requirement in civil cases.
  • Rule 106, however, is only applicable to written statements.

Placing modifiers only where they belong results in the following sentences:
 
  • Rule 608(b) limits extrinsic evidence from coming into the trial only if a party's sole purpose . . . is to attack the witness.
  • Courts at common law relaxed the identity of parties requirement only in civil cases.
  • Rule 106, however, is applicable only to written statements.
 
Before you make the point that little harm is done by misplacement of modifiers in the listed sentences, consider that sometimes meaning changes substantially, according to where you place a modifier, even a single-word modifier like clearly, only, or probably. Note the difference in meaning of the sentences below when these words are moved around:
 
  • The material is clearly not obscene. The material is not clearly obscene.
  • The company only sells textbooks to law schools. The company sells only textbooks to law schools. The company sells textbooks only to law schools.
  • The appellant was probably severely injured because of the appellee's negligence. The appellant was severely injured probably because of the appellee's negligence.
 
Because you can never be sure that your misplacement of a modifier in a legal document will not come back to haunt you, it is best to place them correctly.
 
F. Avoid Elegant Variation and Utraquistic Subterfuge.
 
1. Elegant variation
 
Grammarian H.M. Fowler gave the name elegant variation to the use of different names for the same referent. For example, if in your discussion of a house, you referred to it also as a dwelling, a residence, and a place of habitation, you were using elegant variation. Students tell me that they intentionally employ different names for the same thing because sometime in the past an English teacher told them that the practice avoided monotony. The avoidance of monotony may be of prime importance in much writing, but not in legal writing, where clarity is of prime importance, and the reader may well assume that different names refer to different things.
 
Here are some examples of possible confusion that elegant variation may cause. The following sentence is a student's statement of a 16th century legal rule for possession:
 
For the hunter to have possession of the beast, the pursuer would have to kill the animal and leave it where the beast was slain. (Emphasis added.)
 
In this sentence, the hunter is also called the pursuer, the beast is also called the animal, and the act is described as both killed and slain. Confusion results: How many persons must do what to how many animals (or beasts) for the rule to apply?
 
2. Utraquistic subterfuge
 
Linguists Ogden and Richards gave this exotic name to the calling of several things by the same name. (H.M. Fowler called it legerdemain with two senses, when the same name was given to two things.) Whatever the name, the result is confusion for the reader, who reasonably expects the same word to mean the same thing each time it is used.
 
Illustrations of utraquistic subterfuge follow:
 
A defendant is not responsible [for his act] if at the time of his unlawful conduct his mental or emotional processes or behavior controls were impaired to such an extent that he cannot be held responsible for his act. (Emphasis added.)
 
This sentence was part of a proposed jury instruction. The reader assumes that "responsible" means the same in both parts of the sentence. But this is not so: the first "responsible" means "able to discharge one's obligations"; the second "responsible" means "accountable for one's actions." Fortunately, this instruction confused no juries, for drafters of the Model Penal Code rejected it.
 
Another example:
 
My client has a cause of action against the defendant because the cause of my client's injuries was defendant's conduct.
 
In this sentence, the word "cause" has two meanings, not one, as the reader would expect. A re-write might be:
 
My client can maintain an action against the defendant because the defendant's conduct caused my client's injuries.
 
Finally, this:
 
This law is unfair to the poor. For them murder may be punishable by execution, but the wealthy get away with murder in their business dealings all the time.
 
Here the writer hopes to strengthen his argument by using the word "murder" first literally, then figuratively. Some attorneys exploit the possibilities inherent in the multiple meanings of words. For example, the attorney for a physician charged with procuring an abortion for a patient, claimed that his client was protected from liability by the Statute of Frauds, which states that no one should be held for the debt, default or "miscarriage of another" without written evidence. 
 
G. Avoid Adjective Buildup.
 
At least as confusing as the habits described above is that of adjective buildup, the placing of numerous adjectives in front of a noun. This unfortunate habit is evident in some legal casebooks, and even in court opinions, and too many law students eagerly adopt it. Here is an example from a casebook:
 
Does the requirement that a federal district court spend time on a property claim which would, at best, be a state small claims court matter if state-action-conferred federal jurisdiction were not implicated, comport with Rostow's suggestion that the Supreme Court should "avoid wasting its ammunition in petty quarrels"? (Emphasis added.)
 
In the above sentence, a string of adjectives precedes two nouns, and the combination of adjective buildup and periodic sentence destroy its meaning. Rewritten to avoid both problems, the meaning of the sentence emerges:
 
Federal district courts are required to spend time on property claims that would otherwise be matters for state small claims courts if state action had not conferred jurisdiction upon the federal courts; does Rostow's suggestion that the Supreme Court should "avoid wasting its ammunition in petty quarrels" comport with this requirement?
 
Here is a sentence from a law student's paper; one can see that she is imitating what she considers "good" writing:
 
In Gibbons v. Ogden, the Supreme Court upheld the commerce Supremacy Clause interstate transportation regulation doctrine.
 
Try re-writing the sentence by untangling the adjective buildup. You may get something like this:
 
In Gibbons v. Ogden, the Supreme Court upheld the Supremacy Clause doctrine that regulates transportation in interstate commerce.
 
But, like all rules, this one can sometimes be broken. Consider the following opinion of a state supreme court, which adds humor without impairing clarity by the use of adjective buildup:
 
We need not take a public poll to know that the most feared of all vehicles on the highways of this State [is] the old, overloaded, no-brakes, slick-tired, one-headlight, no-taillights, uninsured log truck.
 
That sentence illustrates the effective and intentional use of adjective buildup. But usually, as seen in the other examples, it is not effective-and is probably unintentional. How does adjective buildup come about? Suppose you want to write about lawyers-not all lawyers, only trial lawyers. To discuss their professional association, you add that word and the phrase becomes
 
  • trial lawyers' association
 
The association has an executive committee, so you add that language, and you get
 
  • trial lawyers' association executive committee
 
The executive committee is going to form an agenda for the trial lawyers' annual meeting, so now you have
 
  • trial lawyers' association executive committee annual planning agenda meeting
 
The executive committee plans to set up the agenda on Tuesday, April 6, so you add that information. Finally you add the predicate to your sentence, and you have created a periodic sentence containing adjective build-up:
 
  • The trial lawyers' association executive committee annual planning agenda Tuesday, April 6, meeting will take place in the Empire Hotel.
 
Of course, you can add more information and make your sentence even harder to understand, but you get the idea. Adjective buildup forces the reader to unwind the sentence by putting the multiple adjectives into clauses and phrases. But don't place this burden on your readers. The reason for explaining how adjective buildup comes about is to show you how to unravel adjective buildup so that you can understand sentences you are almost certain to come across in your law school studies.
 
H. Don't Shift Your Point of View.
 
Whatever you write, you make an unstated promise to your readers not to shift your point of view unless you let them know about it. If you change the subject or object of your sentence without notifying your readers, you are shifting your viewpoint, and that constitutes bad (and confusing) writing. Here is one illustration, from the office of an attorney (I have inserted the unanswered questions):
 
  • Although zoning ordinances should furnish owners of historic properties some relief from the financial burden of maintaining their property for public benefit, decline in market value [of what?] and diminished expectations [whose? about what?] are not sufficient injuries [who received? who caused?] to constitute a taking of property [who took?] without just compensation [to whom?]
 
Put into the sentence guideposts which clearly point out to your reader the subjects and objects of the clauses, and your readers' questions (inserted above) are answered:
 
  • Zoning ordinances should furnish owners of historic properties some relief from the financial burden of maintaining their property for public benefit. However, the injury to the landowners of a decline in the market value of their property or their diminished expectation of income from the property is not sufficient for the court to find that the state has taken private property without compensation to the property owners. Here is another actual example, again with questions inserted:
 
  • In order to collect exemplary damages [who collects?], the conduct causing the injury [whose conduct?] must be wanton, malicious, or grossly negligent as to show heedless or willful disregard for the rights and safety of others.
 
Here is a re-write, with the necessary guideposts added:
 
  • In order for the victim of an injury to collect exemplary damages, the conduct of the person who caused the injury must have been so wanton, malicious, or grossly negligent as to show heedless or willful disregard for the rights and safety of others.
 
And here is an example from a student's examination answer:
 
  • Defendant is guilty of driving recklessly, and with no opportunity to avoid the accident, the collision occurred.
 
Who had "no opportunity to avoid the accident"? Because he fails to insert the new subject (plaintiff), the writer is guilty of shifting his viewpoint without notifying the reader.
 
One Rule-of-Thumb repeated throughout this book is: Say who did what to whom in each sentence. Another way to state this is to say that you should take your readers by the hand and guide them through your writing. If you do so, you will not make unannounced viewpoint shifts.
 
I. Writing It Effectively
 
A. Use Sentence Structure for Emphasis.
 
For your legal writing to be effective, you must not only make your ideas clecir but persuade your reader to your viewpoint. You can help accomplish both aims by variety in sentence structure and appropriate placement of the sentence parts.
 
1. Emphasis by type of structure
 
Somewhere in your academic past, you may have learned about gram matical sentence structure, but to refresh your memory, here is a short review. Grammatically, sentences are either simple, compound, or complex. The simple sentence is the least complicated and usually the shortest. It is composed of a single subject-predicate unit. The following are all simple sentences:
 
  • I know John.
  • Democracy lives!
  • Our neighbors and their friends are active in politics.
  • Mary spends her time studying and thus has little time for socializing.
 
Compound sentences are merely two or more simple sentences joined by a coordinating conjunction like and, but, for, and so or by a semi-colon either with or without a conjunctive adverb like however, moreover, or nevertheless. When you want to make several points of equal importance or join ideas that are closely connected, you will probably choose compound sentences to do so. The following are some compound sentences:
 
  • I have known John for some time, but I do not know his brother.
  • Democracy lives, and it will survive its present threats.
  • Our neighbors and their friends are active in politics; they urge us to get involved,
  • Mary spends her time studying; therefore she has little time to socialize.
 
Complex sentences contain at least one main clause and one subordinate clause. The main clause could stand by itself as a simple sentence and is therefore sometimes called the "independent" clause; the subordinate clause, often introduced by an adverb (like when, while, because, or since), cannot stand alone and is therefore sometimes called the "dependent" clause. Use complex sentences when you want to stress an important idea and subordinate a less important one. The following are some complex sentences:
 
  • Because John is ethical and considerate, [subordinate clause] he is well liked, [main clause]
  • Although Joe has retired from practice, [subordinate clause] he is still politically active, [main clause]
  • After the trial ends but before sentencing the defendant, [subordinate clause] the court will consider mitigating circumstances, [main clause]
 
You can see the difference by comparing the compound and complex sentences below:
 
  • Marbury's formal commission for the judgeship was signed, but it was not delivered. (The compound sentence indicates that both parts of the sentence are of equal importance.)
  • Although Marbury's formal commission for the judgeship was signed, it was not delivered. (The complex sentence indicates that the main clause is the important one.)
 
Sentence variety also helps keep your readers alert and interested in your subject.
 
But inexperienced writers sometimes argue that short, simple sentences make writing clearer. Not necessarily. The next paragraph was written by a first-semester law student. The short simple sentences give the reader no guidance about the writer's intended emphasis:
 
AbeFs conduct seems to be negligent. The rules of torts defining negligence are applicable. We must examine Abel's conduct to decide his negligence. He threw a small airplane at Baker. The act of throwing the airplane is not disputable. He placed Baker at an unreasonable risk. He had the duty to avoid unreasonable risk to the other spectators. The damage suffered was a condition sine qua non of the act in question.
 
Contrast the following newspaper item about the docking of the aircraft carrier Saratoga after the end of the Persian Gulf hostilities:
 
Thousands of people crowd the dock; they are a happy crowd, some of whom arrived as early as 3:00AM for the noon arrival of the Saratoga, to welcome the sailors back from the war. The dominant colors are red, white, and blue, in the people's clothes, the signs they are carrying, and the flags they are waving. Each person hopes to get the attention of that special sailor. But besides the messages and colors, there is another, deeper, statement: "We love America!"
 
(In this paragraph, the first sentence is compound; the second, and third are simple; and the fourth is complex. The variety makes the writing effective. Note that the simple final sentence embedded in the fourth complex sentence adds force. You can use this technique to improve your writing.)
 
2. Emphasis by placement of ideas
 
Be aware, too, that you can subtly alter the effect of your sentence by where you place the idea you wcint to emphasize. The end of each sentence should contain the most important idea because your reader will expect to find it there. Read the two sentences below. Although both report the same facts, the first is pessimistic in tone, the second optimistic. That is because the first ends with the bad news and the second with the good news:
 
  • Utility department crews are working around the clock to remove ice from downed wires and to restore service, although vyidespread blackouts are still present throughout the city, and hundreds of residents remain without lights or heat.
  • Although widespread blackouts are still present throughout the city and hundreds of residents remain without lights or heat, utility department crews are working around the clock to remove ice from downed wires and to restore service.
 
In the following three sentences, you can decide what idea is the most important by where it appears in each sentence:
 
(Most important point: the federal statute would override the state statute.) If the defendant can prove that the state statute did not give adequate notice because it was vaguely written, the federal statute would override it.
 
(Most important point; the state statute may be vaguely written.) The federal statute would override the state statute if the defendant can prove that the state statute did not give adequate notice because it was vaguely written.
 
(Most important point: the state statute might not have given adequate notice.) The federal statute would override the state statute if the defendant can prove that, because the state statute was vaguely written, it did not give adequate notice.
 
Note: because of the unconscious assumption of your readers that the most important ideas will be at the end of your sentences and the next most important at the beginning, you should put your qualifiers, amplifiers, and ho-hum language into the middle of your sentences. Some of these words are
 
Qualifiers: on the other hand, however, in the alternative, never theless, on the contrary, for the most part . . .
 
Amplifiers: in addition, for example, furthermore, specifically, moreover . . .
 
Ho-hum Words: that is to say, in fact, as a matter of fact, indeed, in effect, effectively, certainly . . .
 
In the following paragraph, the student is not really conveying the point she wcints to make: that a tire the defendant sold the plaintiffs father was not defective. Her point does not come across very clearly because of the poor placement of the ideas in her sentences:
 
Certainly the defendant owed a duty to the plaintiff to sell him a tire which would withstand normal wear and tear. However, defendant's breach of duty was not established by the plaintiff. Here the evidence indicates the tire was not defective because a blow-out was possible due to the condition of the road.
 
Cewi you re-arrcinge the language to make the point more effectively? The following re-write does the job by placing the important point at the end of each sentence and moving the ho-hum word {certainly) and the qualifier (however) from the beginning to the middle of the sentences:
 
The defendant certainly owed a duty to sell the plaintiff a tire which would withstand normal wear and tear in ordinary road conditions. Because the evidence indicates, however, that the tire may have blown out due to abnormal road conditions, the plaintiff has failed to prove that the defendant breached his duty by selling the plaintiff a defective tire.
 
B. Make Lists; Use Parallel Structure.
 
Legal writing doesn't have to be murky, though too often it is.   Murky writing becomes clear when you itemize your points, making lists in parallel form. The following definition (from a federal court opinion) is unnecessarily obscure:
 
To be liable for plagiarism it is not necessary to exactly duplicate another's literary work, it being sufficient if unfair use of such work is made by lifting of a substantial portion thereof, but even an exact counterpart of another's work does not constitute plagiarism if such counterpart was arrived at independently,
 
Re-written, as a list, the ideas are more clear. All three verbs were made parallel by being put into the third person singular:
 
A writer is liable for plagiarism if he or she unfairly reproduces a substantial portion of another writer's literary work and passes it off as his or her own product; but if the writer independently arrives at the counterpart, even an exact counterpart is not plagiarism.
 
Lists untangle complex ideas. Here is a definition of negligence, from a form book. It is made clear by the list form:
 
Negligence includes (1) the duty to use reasonable care, that is, to conform to a certain standard of conduct so that others are not subjected to unreasonable risk by your behavior; (2) the failure to conform to that standard, either by doing something you ought not do or by failing to do something you ought to do; (3) injury resulting to another because of your failure to conform to the standard set in (2), i.e., a causal connection between your conduct and the injury the other person suffers; and (4) loss or damages to another person's interests as a result of the injury. Notice how the drafter of the negligence rule used parallel structure, introducing each clause by a noun (duty, failure, mjury, causal connectior), and loss or damages).
 
Caveat! When words that are usually placed in the middle of the sentence are important to your point, put them in the attention-getting positions—at the end or beginning.
 
This re-write also illustrates two other writing rules: (1) Put a person in the subject slot; (2) put the most important idea at the end of the sentence. You can avoid the use of he or she by making the subject plural {writers are liable, etc.).
 
But the drafter of the following excerpt (from a law office handout) forgot to use parallel structure:
 
• A valid banker's acceptance contains the following: (1) a time draft; (2) signature of an officer of a bank; (3) when and where the acceptance is payable; (4) statement of the underlying transaction; and (5) "accepted" written across the face of the instrument.
 
The drafter of that handout violated two rules of parallel structure:
 
(1) The word that introduces the list must "fit" all the items on the list.
 
(2) The grammatical structure of all the items must be alike.
 
The re-write (below) follows the two-part rule. The introductory words (time draft) fit all list items, and each item begins with the -ing form of a verb (the present participle):
 
In order to be valid, a banker's acceptance must be a time draft (1) containing the signature of an officer of the bank; (2) stating when and where acceptance is payable; (3) referring to the underlying transaction; and (4) bearing the word acceptance on its face
 
Finally, compare the following two examination answers comparing the holdings of two courts. The first answer does not clearly show the significance of the two different holdings, partly because the student failed to state his ideas parallelly. The second answer, framed in parallel Icinguage, is longer, but clearer.
 
In Clark, the court held that the first finder of loose logs had a right superior to that of the subsequent finder, and in South Staffordshire, under similar facts, the court ruled for the landowner because the found article was attached to his land, thus giving him a superior right to it.
 
Whether the found article was loose or attached to the land was the significant factor in Clark and South Staffordshire. In Clark, the court held that the first finder of logs floating in a bay was the rightful owner against a subsequent finder; but in South Stafford shire, because the found rings were embedded in mud at the bottom of a pool, the court held that the landowner of the pool had a superior right over the subsequent finder.
 
C. Economize!
 
"Copious Dryden wanted, or forgot/The last and greatest art, the art to blot." (Alexander Pope, "Epilogue to the Satires")
 
On the other hand, it was said of Milton's writing, "Fewer words would not have served; more would have been superfluous." As legal writers, imitate Milton, not Dryden. But this advice is hard to take. Benjamin Freinklin said that lawyers "say little in much," and that criticism too often applies today. Wordiness is to the writer what obesity is to the jogger. You can avoid wordiness if you (1) don't pontificate; (2) do use concrete language; and (3) do use active verbs.
 
1. Don't pontificate.
 
Lawyers are not the only writers who pontificate. Here is a sentence about acupuncture, written by a medical administrator:
 
  • If this is another potential modality that can have a positive outcome in the treatment of addiction, it would certainly be something we'd like to add to the continuum of services offered. (Probable translation: If it works, we'll use it.) 
 
And the following paragraph is from an engineering journal article:
 
The behavior of individuals within a building during a fire situation has often been one of the critical determining factors relative to the eventual outcome of the fire incident. We will consider the individual relative to his physical, psychological, cultural, and time constraints during a fire occurrence within a building. The behavioral dynamics of the individual will usually be predicated and initiated by the many variables which are considered in the individual's perception of the threat created by the fire situation. Psychologically and physiologically, the human individual is not able to adjust to adaptable tolerance levels for the products of a fire occurrence . . . .
 
As nearly as I can make out, the author of this gobbledegook is saying that individuals respond differently to fires, depending on whether they believe their safety is threatened. The piece is a blueprint for what to avoid. Notice that the author
 
(1) Never uses one word when he can use two. A fire is "a fire situation," "a fire incident," and "a fire occurrence."
 
(2) Never uses a simple word when he can use a fancy word. "Behavior" becomes "behavioral dynamics." "Decided" becomes "predicated and initiated," and "of" becomes "relative to."
 
(3) Engages in redundance whenever possible, as in "eventual out¬ come," for "outcome," "determining factors," for "factors," and "human individual," for "individual"-or "human," and "adjust to adaptable tolerance levels," for "adapt to."
 
(4) Uses passive verbs if he can, instead of active verbs: "will be predicated and initiated," and "which are considered."
 
(5) Throws in adjective build-up for good measure: What are "physiccil, psychological, cultural and time constraints"?
 
After reading this excerpt, you will agree that a good Rule-of-Thumb for legal writing is: Write like a person, not a personage.
 
2. Use concrete language.
 
One way to "say it" clearly is to use concrete language instead of abstract Icinguage like that in the excerpt above. Lawyers are often criticized for their use of abstract language. Someone wrote that the legal version of the Lord's Prayer would begin:
 
"The Lord is my external-internal integrative mechanism ... He positions me in a nondecisional stance. He maximizes my adjustment."
 
Abstract language refers to general and vague concepts. It utilizes jargon. It is ponderous, roundabout. Concrete language is particular, not general; it refers to actual, specific things. It is therefore plain, not abstruse. Contrast the statements of Benjamin Franklin and of Warren Burger, on the same subject:
 
  • It is a false assumption that every graduate of a law school is, by virtue of that fact, qualified for ultimate confrontation in the courtroom. (Burger)
  • Lawyers, preachers, and tomtit eggs: there's more of them hatched than come to perfection. (Franklin)
 
The first quotation makes its point adequately, but the second makes it emphatically-even though most of us have no idea what "tomtit eggs" really are!
 
A legal scholar used abstract Icinguage to criticize wordy judicial opinions. He wrote
 
  • Superfluous words may debilitate a legal opinion into nugacity.
 
(He meant, I think, "Don't hide your opinion under a bushel of words.")
 
More than ever today those who draft contracts and other legal documents should use concrete language. For courts have held that if persons who sign contracts do not understand their meaning, the contracts are voidable. Plain English laws have been adopted in some states, and more states are considering them. But plain English need not be Dick-and-Jane language. It is merely clear, direct statement conveying your meaning accurately.
 
3. Write with active verbs.
 
When you use active instead of passive verbs, your writing is clearer and briefer. Active verbs put the actor into the driver's seat and inform your reader who did what to whom. Passive verbs often result in agentless writing. You can't tell who the actor is in this sentence: "The firearm was attempted to be used." The double-passives ("was attempted" and "to be used") make it hard to decide. This kind of sentence sometimes results from the author's revision of a sentence that started out as something like "The defendant attempted to use the firearm." What happens, in the revision, is that the actor disappears. "The committee arrived at the decision" becomes, "The decision was arrived at by the committee," and then "The decision was arrived at."
 
The following sentence was part of a student's answer to a writing problem. See if you can re-write it using active verbs:
 
  • If the defendant's car is found to have been purchased for transportation to and from work, it will be found to be a necessity and the defendant's contract will not be voidable despite his minority.
 
When you change the passive verbs, your sentence will read:
 
  • If the court finds that the defendant purchased his car to provide transportation to and from work, it will hold that the car is a necessity, and the defendant will not be able to void the contract, despite his minority.
 
The second sentence is longer, despite the active verbs, because the actor was put into it, making it clearer. Often, however, the passive verb makes the sentence longer:
 
  • The committee decided (active verb) The decision was arrived at by the committee (passive verb)
  • The court held (active verb) The holding was reached by the court (passive verb)
  • The plaintiff argued (active verb) The argument was presented by the plaintiff (passive verb)
 
It is a strange fact that law students gravitate toward passive verbs almost as soon as they reach law school. Someone once spoofed this tendency by quoting one law student as saying to another, "When law school was begun by me, a love affair between Donna and myself was caused to take place."
 
Resist the tendency. When you edit your first draft, remove unnecessary passive verbs and your writing will improve. But, as always, there are exceptions. Do not shun passive verbs completely. Use them judiciously when:
 
(1) the object of the verb is more important than the subject.
 
When President John Kennedy was assassinated, newspaper headlines proclaimed, "Kennedy Assassinated." (The object of the action was more important than the subject.)
 
(2) the subject is unknown.
 
When traffic congestion of unknown cause is reported, the sentence might read, "Traffic was congested on Route One during rush hour yesterday."
 
(3) the actor/subject wishes to dissociate himself from the act:
 
• The yearly subscription rate will be slightly increased beginning July 1, 1993.
 
Use active verbs instead of adjectives and nouns for more forceful effect. Compeire the following pairs:
 
• She made a decision She decided
• I had knowledge of I knew
• He made an examination of He examined
• It had a tendency to It tended to
• This is violative of This violates
• It is wasteful of It wastes
• She made a statement about She stated
• They put emphasis on They emphasized
 
 
The phrases on the left include a verb with almost no meaning (made, had, is, put) plus either an adjective or a noun. On the right, a meaningful verb is substituted, meiking the noun or adjective unnecessary. Look for phrases like those above in your own writing and edit them out. Try your skill on the following paragraph:
 
This paper presents an examination of the duty of a manufacturer of warning of possible risks of its product's use by consumers. The examination will be of two federal court decisions, Davis v. Wyeth Laboratories, Inc., and Reyes v. Wyeth Laboratories, Inc. These cases contain a description of the sustaining of injuries by consumers after the injection of drugs. The issue is whether there was a sufficient warning by the manufacturers of the plaintiffs as to the information about the danger of the drugs.
 
When you substitute the right verb for the verb-noun/adjective combination, your new paragraph will look something like this (the new verbs are in bold-face):
 
This paper examines whether the manufacturer has a duty to warn consumers of possible risks they may incur when they use its product. Two federal court decisions will provide examples. In both cases, consumers sustained injuries after they were injected with the mcinufacturers' drugs. The issue was whether the manufacturer sufficiently informed the consumers that the injected drugs were dangerous.
 
Notice that this paragraph is both clearer and more succinct than its predecessor. A RULE OF THUMB: When you can say the same thing in fewer words, do so.
 
The paragraph below, from the same paper, is a real re-write challenge. It contains several faults: (1) the use of expletives; (2) the failure to say who did what to whom; (3) the overuse of passive verbs; and (4) weak verb/ adjective or noun combinations. Can you tackle the job? Here is the original paragraph:
 
The court found there was a failure to meet the burden of providing a waming of the dangers involved when taking defendant's drug. The product was not of ordinary usage, so there was a duty to warn of its dcingers. The court concluded that there is an absolute duty to warn that there are risks involved in the use of the product.
 
And here is a possible re-write:
 
The court found that the manufacturer failed in its duty to warn the consumers that the drug might be dangerous. Since consumers did not ordinarily use the drug, the manufacturer had the duty to warn them of its dangers. The court concluded that the manufac turer must warn consumers that they are at risk when they use the drug.
 
D          Don't Use Vague Referents.
 
A comic strip shows a little boy holding up a cookie box so that his sister can see it and saying that if she can guess what kind of cookie is in the box, he will give it to her. Delighted, she correctly guesses, "chocolate chip," and he says, "Right!" and gives her the empty box, thus illustrating the intentional use of the vague referent "it." But, in legal writing, the unintentional use of vague referents can cause trouble-and litigation.
 
The small, unimportant-looking pronoun it along with its companions this and which, should refer to closely adjacent antecedent nouns. If their antecedents are too far away, if they refer to some nebulous concept not actually mentioned in the sentence, or if they have no antecedent at all, it, this, and which become vague referents. Vague referents cause confusion in all kinds of writing, but they are dangerous in legal writing, where precision is so important. These sentences were taken from law students' writing:
 
(1) Since defendants were playing a practical joke on the plaintiff, it shows intent on their part.
 
What shows intent? That is, what does the referent "it" refer to? The writer is aware that one of the elements of batteiy is "intent" and wants to say that defendants' playing a practical joke indicates their intention to carry out the battery. In his sentence structure, however, the noun phrase that "it" refers to is "practical joke," and practical jokes cannot possess intent. The sentence needs recasting:
 
Defendants' playing a practical joke on the plaintiff showed their intent.
 
(2) If one wishes to be free of liability, it must be clearly stated.
 
The writer intends "it" to refer back to wish, but wishes here is a verb, not a noun, so the reference is unclear. The rewrite clarifies the meaning:
 
In order to be free of liability, one must clearly disclaim it.
 
(3) The court held that since the petitioner believed he would be repaid, this was enough to prove a bonafide relationship.
 
Again, "this" refers back to a non-existent noun (belief). A re-write provides the noun and mcikes the vague referent unnecessary:
 
The court held that the petitioner's belief that he would be repaid was enough to prove a bonafide relationship.
 
(4) The loss of sleep suffered by the plaintiffs daughter was caused by the accusations of the defendant, and this adds support to the plaintiffs claim of intentional infliction of emotional distress.
 
What adds support? "This" refers to nothing in particular. The sentence is grammatically improved by adding fact after "this," avoiding the vague referent but doing nothing to improve the clarity. In order to get rid of the vagueness, the idea of causality needs to be added:
 
Because the accusations of the defendant caused the plaintiffs daughter loss of sleep, the daughter has a claim against the defendant for the intentional infliction of emotional distress,
 
In the re-write, it is clearly the daughter whose claim is validated by her loss of sleep. In the original sentence, the erroneous impression is that the mother's claim is based upon her daughter's sleeplessness. The claim of the daughter is given emphasis by placement, in the re-write, at the end of the sentence in the main clause, while the less important information is in a subordinate clause at the beginning of the sentence. If the accusations of the defendant were the most important information, the sentence positions would be reversed.
 
One more illustration; the vague referent "which" is the culprit:
 
(5) In the Senate debate there are a number of good reasons for the passage of the Equal Rights Amendment, which should be considered.
 
As the sentence is cast, the antecedent of "which," is "Equal Rights Amend ment." But the intended referent is "reasons." Recast, the sentence becomes clear:
 
In the Senate debate about the Equal Rights Amendment, a number of good reasons for its passage should be considered.
 
III. Writing It Properly
 
Called into the jury box of an English court at the start of a trial, a man asked to be excused, saying, "My wife is due to conceive today and I would like to be there."
 
The judge answered, "I think you have got that wrong. You may mean that your wife is about to be delivered of a baby. But whether 1 am right or you are right I certainly think you should be there." 
 
The English judge forgave the prospective juror for his mistake, but, as a lawyer, you had better use language properly. Words are your most important tool, and you need to use them well.
 
A. Watch Out for Problem Words.
 
Some words cause more trouble than others. Four word-groups that may trip you up are (1) words with multiple meanings; (2) words with special legal meanings; (3) confusing pairs; and (4) vague, fad words.
 
1. Words with multiple meanings
 
These are words that have at least two meanings (sometimes opposite). Your writing should make clear which meaning you intend. Here are some of these words:
 
  • oversight: can mean "unintentional error" or "intentional watchful supervision." The Brief was filed late due to an oversight on the attorney's part. (That is, the attorney made an error.) The Foreign Relations Committee has oversight over its subcommittee's proceedings. (That is, it has authority; over its subcommittee's proceedings.)
  • effectively: can mean either "well" or "actually." The responsibility was effectively discharged. (That is, it was carried out well or efficiently.) The responsibility was effectively discharged. (That is, it was actually carried out or was, in effect, carried out.)
  • sanction: can mean "approval" or "penalty." The sanctiorj of violence should never be government policy. (That is, government should never approve violence.) Official sanctions are being considered against Argentina. (That is, coercive measures are being considered.)
  • presently: can mean "soon" or "right now." I will join the group presently. (That is, I will be there soon.) I am presently without an apartment. (That is, I am without one now.)
  • cite: can mean "command," "point out," or "summon before a court of law." He was cited for his bravery. (That is, he was commended for bravery.) He was cited as a typical law student. (That is, he was pointed out as typical.) He was cited for a traffic violation, (That is, he was summoned before a law court.)
  • ultimately: can mean "at the end" or "at the beginning" She ultimately reached her goal. (That is, she finally got there.) The two words are ultimateli; cognates. (That is, they had the same ancestor.)
  • may: can indicate either permission or possibility. Students may adhere to the dress code. (That is, they are permitted to do so.) Students may adhere to the dress code. (That is, it is possible that they will.)
  • moot: can pertain to a controversy that no long exists, because the issues have been settled or to a question that is unsettled, therefore debatable, The question is moot, the plaintiff having settled out of court. (That is, the question has been settled.) Whether the World Court is effective is a moot question. (That is, the question has not been settled.)
 
In the list above, the earliest meaning of each word appears first. Other words may soon be added to the list, for English usage constantly changes, with words coming into the language, leaving it, and gaining or losing me£inings. Two possible candidates for future addition to the list above are momentary and problematic. Although dictionaries still list momentary as meaning "for a moment," journalists are beginning to use it to mean "in a moment." Problematic traditionally has meant "speculative"; it is now com ing to mean "posing a problem."
 
2. Words with special legal meanings
 
The words on this list have an everyday meaning different from their legal meaning. Because your clients may be unaware of their legal meaning, you should be aware that they may not understand what you are saying.
 
  • cure: The everyday meaning of this verb is "heal," as in, "Medicine cures illness." But the legal meaning may be "correct," as in "The court held that the trial proceedings cured defects in the pleadings." 
  • constructive: The layman understands this adjective to mean "helpful," as in, "The review of the performance contained constructive criticism." But the legal meaning is more likely "to be considered as," as in "constructive notice," "constructive admission," "constructive fraud," "constructive possession," and other legal terms. 
  • facially: This refers in common speech to a portion of the human cinatomy, but the legal meaning may well be "that which appears on the face of the document, with no explanation." A "facial defect" is more likely to be an imperfection in a legal document than an anatomical defect, as in, "The statute is fadalfy unconstitutional." 
  • Issue: In everyday usage, this is a transitive verb (i.e., it must be followed by a noun-object) meaning "distribute." ("The Administration issued a policy-statement.") But in legal use it is sometimes an intransitive verb (i.e., it is not followed by a noun-object), meaning "come forth," as in, "The writ /sswes."
  • material: The layman uses this word most frequently as a noun, meaning "sub stance," as in "The dress was made of flimsy materiaV? To the lawyer, the word is more often an adjective meaning, "of the essence," as in, "The testimony of the eyewitness was material''
  • harmless: The layman understands this word as meaning "not harmful." Law adds a second meaning, "blameless, not liable," as in "The defendant was held harmless for the bicycle accident caused by improper signing of bicycle paths."
  • lie: The everyday meaning of this verb is "recline." In legal usage it adds the meaning "to be admissible," as in "an action lies in emotional distress."
 
3. Confusing pairs
 
In this category are words that people tend to use interchcingeably although they have different meanings. Some of these word-pairs are confus ing because they look alike; others are confusing because they are often mis used:
 
  • affect/effect: These two words are not interchangeable. The verb affect means "influ ence, change, or modify." You can affect decision-making with your vote. Affect also means "pretend" or "imitate"; you might affect interest in some thing that really doesn't interest you. The verb effect means "bring about or accomplish"; for example, legisla tion is designed to effect an end. Because to effect a change (that is, to bring about a change) contains the idea of affecting something, effect and affect are often confused. But if you distinguish between the words, you may effect a change in usage that will affect your writing.
  • principal/principle: These words receive heavy use in the legal profession. Be sure to distinguish between them. Principles are basic truths, rules or assumptions. Your legal arguments will often be based upon legal rules, also called doctrines or principles. The word principle is never an adjective; it is always a noun. The word principal can be either a noun or an adjective. As a noun it refers to the individual or party who is first in importance, rank, or degree. Schools employ principals and vice-principals. In contract law, reference is often made to the principal/agent relationship. The principal is one who empowers another (the agent) to act as his representative. The principal is one who has the prime obligation in a contract, or one who, in criminal law, commits a crime. As an adjective principal means "chief, or first, or of highest rank", as in, The Constitution is the principal defense of our rights. You will also be referring to the principal (i.e., "main") argument for the prosecution or the defense.
  • lie/lay: The discriminating writer maintains the distinction between these two words, which have become a shibboleth for educated usage. Lai;, the word more often used, is properly a transitive verb, which means that it must be followed by a noun as object. Thus you la?; a book on the table, /ay down a law, and la?; bricks to make a wall. In all these phrases la?/ means "put, place or set forth." {Lai; has many other related meanings, for which consult your dictionary, but they all have in common some sort of placement, as in lay a wager.) Lie is an intransitive verb; that is, it does not take an object-noun. You He on the bed, or you He down. He meaning, in general usage, "recline."    (The third meaning of He is one that confuses no one; "tell an untruth.") The problem with He and lay is that the past tense of He is identical with the present tense of hp. Although last night I lay on my bed, today I lay the books on my desk. The complete paradigm for each verb is:
  • in/into: These prepositions are not interchangeable; in refers to a position, condition, or location, and into refers to a change of condition, indicating movement to another location. A person is sitting in a room, but when she leaves the room and enters another, she goes into another room. Both in and into have numerous other meanings (for which consult your dictionary), but the only confusion caused by the words is in this small but important distinction.
  • bring/take: Although these words are not look-alikes, they are often mistakenly interchanged. They are distinguishable by the orientation of the speaker. Something is brought to the person speaking, or to his residence (when he is there), or to a place identified with him (when he is there). Thus you, as speaker, would tell someone to bring his class notes to you when he comes to your home or to bring them to your home tonight, when you are there. But if you are at the law school you would tell him to take the notes to your home or to take them to another place. The distinction is like that between come and go. (Come to me; go anywhere else.)
  • loan/lend: A law school colleague asked me to include this pair, noting that she is really annoyed at their mis-use. Traditionally, loan was always a noun, never a verb. You could make someone a loan, but you could not loan money to her. Usage has changed that, and you have no doubt heard even educated speakers use loan as a verb. Meticulous users still retain the distinction, however, and I would recommend that you use lend as the verb and loan as the noun in your legal writing. (There is no point in irritating those who object to the more recent change in usage.)
  • imply/infer: The distinction here is carefully observed in legal writing. The speaker/ writer implies; the listener/reader infers. To impl; is to intimate or to state indirectly; to infer is to draw a conclusion based on what someone has said or written.
  • foregoing/forgoing: Notice the e in the first word. It indicates that the prefix {fore) means "before." Thus the foregoing is something that has gone before. The prefix for has nothing to do with what went before. It has the sense of exhaustion (as in forspent)? "giving up completely" (as in forsake or forswear or forgo ), or prohibition (as in forbid). ''Forgoing the opportunity to obtain redress, the negligence victim declined to file suit."
  • credible/credulous: Credible means "believable." (The witness was credible.) Credulous means "believing too readily, thus gullible." (The victim of the swindle was credulous.) These words are more often used in their negative forms: incredible meaning "unbelievable," incredulous meaning "disbelieving, skepti cal."
  • eager/anxious: Although these words are sometimes interchanged, they are not synony mous. You are eager for something to occur if you look forward to its occurrence; if you view the occurrence with fear or displeasure, you are anxious about it.
  • precedent/precedence: A precedent is a judicial decision that may be used as a basis for decisions in similar subsequent cases. Pronounce it with first-syllable stress. Precedent may also mean "convention or custom." Precedence, pronounced either with first- or second-syllable stress, means "priority." The public right may have precedence over the right of an individual.
  • reason/rationalize: As verbs, these words are not interchangeable. Courts reason, that is, they exercise their analytical powers to arrive at conclusions. Courts also sometimes rationalize; that is, they justify their decisions, or find excuses for them. Unless you are criticizing the opinion of the court, use the verb reason.
  •  famous/notorious: If you are famous, it is because you have done something to be proud of; If you are notorious, you have done something dishonorable. To be notorious Is to be infamous. (That is the traditional distinction between the two words; notoriety; is now being used to mean "fame," so the distinction will probably eventually disappear.)
  •  tortuous/torturous: The first of these adjectives has both literal and figurative meanings. It means "twisted or circuitous," its literal meaning as in "a tortuous path"; its figurative meaning as in "tortuous reasoning." The second member of the pair is the adjective form of the noun torture. It means "afflicted with or causing great physical or mental pain." Its meaning is only literal: "a torturous injury."
  • discrete/discreet: The first adjective refers to individual, distinct parts. "The procedure requires a number of discrete steps." The second refers to a respect for reserve. "Attorneys must be discreet in their client-relationships."
  • farther/further: Farther refers to literal distance, either temporal or spatial. "Cincinnati is farther from New York than from Louisville." Further is used in all other senses, especially to indicate degree or figurative space or time. "America goes further into debt every year." "Let me explain further"
  • enormousness/enormity: To refer to the size of something, use enormousness. The word enormity means "excessively wicked or outrageous." You might refer to the enormiti; of a crime, but the enormousness of an elephant.
  • reluctant/reticent: Writers have recently begun to confuse these two adjectives, but they are not synonyms. The first means "hesitant or unwilling." The second means "characteristically silent or reserved." The witness may be reluctant to testify. Residents of Maine are reputed to be reticent
  • economic/economical: The first adjective is broader in meaning. It means "related to material wealth." The second means "thrifty" or "not wasteful." ''Economical persons save money because economic disaster may strike."
  • historic/historical: A historic event is one that is important in history. Anything concerned with history, whether it is important or not, is historical. Historical fiction often records historic events.
  • ingenious/ingenuous: The first of these adjectives is derived from the noun ingenuity;, which means "inventiveness or cleverness." The second means "lacking sophistication, frcink, naive." Its noun form is ingenuousness.
  • unique/unusual: Someday these two words will be synonymous. In fact, the second may disappear from the language. The reason is that unique (meaning "one of a kind") is often prefaced with rather, very, or most. Journalists and others who do this are unaware that unique is a Latin-derived word meaning "only" or "sole."
 
4. Vague and vogue words
 
Someone once said that the difference between the right word and the almost-right word is like the difference between lightning and the lightning bug. That may be overstating the point, but it is not an overstatement to say that if you are careful to choose words that carry a precise meaning, your writing will be much more accurate. The fact is, however, that it is easier to reach for a word that is widely used in numerous contexts instead of searching for a word that exactly expresses your meaning. The following words are too widely used to be useful:
 
  • where: Where can mean when, if, because, in which, that, and perhaps other things as well. Henry Weihofen suggests that one should use where to express only place, as in "states where the rule is followed," but that "cases where the rule is followed," should be changed to "cases in which the rule is followed," or "cases that follow the rule." Whether you follow Weihofen's suggestion or not, you should consider substituting other words for where when doing so will express your idea more precisely;
  • False imprisonment occurs where one party acts in a manner intending to confine another within fixed boundaries. (Substitute when.)
  • Where a person's house is searched without a search warrant, he has a cause of action against the officer who conducted the search. (Substitute //)
  • The defendant had reason to believe his life was in danger where the plaintiff had a knife. (Substitute because.)
  • The burglar read in the newspaper where another man had been arrested for the burglary, (Substitute that) (It is true that courts generally use where with all these meanings and more. But it is also true that court opinions are sometimes not models of clarity.)
  • as to: This phrase is another favorite of lawyers, so often used by them that it has been called, "the lawyerly as to." Its overuse has resulted in its taking on so many meanings that it is hard to tell which one the writer has in mind. It may mean for, about, of,-or nothing at all, as in the phrase as to whether Here are some examples:
  • Suggestions as to improvement are welcome. (Substitute for) We can only guess as to the reasons for the crime.
  • (Substitute about)
  • There is no problem as to jurisdiction or as to whether to take this case. (Substitute of for the first as to and omit the second.)
  • address: This verb is generally overused. Once used mainly in the context of directing a letter to its intended recipient, address has become a portmanteau word with at least the following meanings: "(1) direct, (2) call attention to, (3) attempt to answer, and (4) consider." In the following sentences it is used in these ways:
 
(1) She addressed the question to the Chairperson. (That is, she asked the Chairperson for an answer.)
 
(2) He addressed the matter of the safety measures the city had adopted. (That is, he called attention to the matter.)
 
(3) She addressed the problem of unemployment. (That is, she attempted to find a solution for it.)
 
(4) He addressed the liaison between the departments, (That is, he considered the liaison.)
 
  • establish: This is another word that is well on its way to uselessness because it carries so many vague inferences. One student used it three times in a single sentence, with three different meanings: 
  • The court established (held, said) that the plaintiff did establish (provide) sufficient consideration for the offer by making the Dean's List as his uncle had established (required).
  • pursue: The early case of Pierson v. Post exemplifies the original meaning of pursue: "follow in an effort to overtake " But the word has become a fad word and is now vaguely used in contexts like the following:
  • The physician, pursuing anonymity . . . (seeking)
  • The student pursuing law school (applying to)
  • The late-dinner crowd pursuing a night out (enjoying)
 
What has happened to these words is now happening to others. The verb affect, for example, contains numerous meanings, including-but not limited to-"improve," "worsen," "ameliorate," and "retard." These meanings all carry the sense of "change," but more specific verbs can convey the kind of change you mean. Other currently popular and vague words are the verb/ adverb combinations go to, look to, and look at, which can mean almost anything, and therefore mean almost nothing. That's the trouble with vogue words; their meaning has been drained out of them by overkill.
 
Rule-of-Thumb: When you want to be precise, choose words that have specific meaning.
 
B. Avoid Legalese.
 
All professions have their own jargon. In a bureaucracy it is called bureaucratese, in education, educese, in law, legalese.  But while bureaucrats and educators talk mostly to themselves, lawyers deal with the public.     So if only to keep your clients happy, write so they can understand what you mean. And you have an additional incentive: recent legislation protects consumers from accountability for documents they sign but do not understand.
 
Legalese comes in at least three forms: archaic language; joined synonyms; and throat-clearing.
 
1. Archaic language
 
This is language that has survived through the centuries, much of it from as far back as the Middle Ages. If it has any modem meaning, the meaning is different now than it used to be. And much of it has altogether disappeared in English-except in legal documents. You have seen these words strewn lavishly throughout legal forms, words like hereinbefore, hereinafter, and hereinabove; therefrom, thereunder, and thereof the -eth endings of Middle English third person verbs; and the triplets said, same, and such. You can replace some of these words with modem English. Others you can just discard, without loss of meaning. Here is an excerpt from a lease, containing typical legalese (emphasis added):
 
Tenant hereby further agrees to use said premises as a dwelling and for no other use, to pay the rent herein reserved when same is due, without any deduction therefrom, to pay all utility bills for said premises when and as the same shall become due, and not assign or sublet said premises or any portion thereof. . . . This lease, at the option of the Landlord, shall forthwith cease and terminate, aind said premises shall be surrendered to the Landlord, who hereby reserves the right to forthwith re-enter and re-possess said premises. Here is the same paragraph minus the legalese:
 
The Tenant further agrees to use the premises as a dwelling, to pay the rent when it is due, and to pay all utility bills when they are due. The Tenant agrees not to assign or sublet the premises. The Landlord reserves the right to terminate the lease on demand, and to re-enter eind to re-possess the premises.
 
Lawyers themselves sometimes do not know what legal archaisms mean. I have received letters from lawyers asking what statements like "Go hence without day," and "Affiant sayeth naught" mean. The archaic "payment this day made" has been found ambiguous in court because it can mean either payment was made "this day" or payment will be made "this day."
 
The persistence of Latin and Anglo-French words in legal documents is another mindboggler-especially today, when almost nobody understands either language. You have looked up these words in your legal dictionaries, only to forget them at once, words like laches, cestui que trust, gifts causa mortis, in pari materia, and others too numerous to list. These are gradually disappearing from legal writing, and you can help the process along in your own writing.
 
2. Joined synonyms
 
In these compounds, usually joined by and, the first word means the same thing as the second word, or one word includes the other. In some of these compounds, the synonyms were coupled during the medieval period, as English lawyers began to abandon the use of French as the principal legal language. Others combine French and Latin (like 'cease' (French) and 'terminate' (Latin) in the quoted excerpt above.               Many of these combinations still encumber legal writing; for example:
 
  • acknowledge and confess
  • breaking and entering
  • deem and consider
  • keep and maintain
  • peace and quiet
  • give, devise, and bequeath
  • goods and chattels
  • free and clear
  • apparent and obvious
 
The first means that the person appearing in court may leave and not have to return at a later date; the second means that the person filing an affidavit has nothing to add.
 
  • within and around 
  • analyzed and evaluated
 
Rule-of-Thumb: When two words mean the same thing or one includes the other, omit one.
 
3. Throat-clearing
 
In oral interviews, as well as in their writing, politicians load their Icinguage with throat-clearing, the practice of saying one thing in several ways. You have heard them protesting on television that some fact or event has "in no way influenced, changed, or altered my decision " This reiteration, intended to reassure the listener about the speaker’s sincerity, instead tends to bring it into question. Written throat-clearing evokes the same response. Remove phrases like those below from your writing, to make it more effective:
 
  • the duty, responsibility, or obligation . . .
  • in any manner, shape, or form . . .
  • null and void and of no further force or effect . . .
 
In addition to cluttering your writing and making your argument less credible, needless repetition creates a seeming distinction where there is no actual difference in meaning.
 
Another kind of throat-clearing is what I call the long windup, introducing your remarks with numerous words when one or two would accomplish the same purpose. Here is a list; you might want to add to it;
For Substitute
• The question as to whether • Whether
• There is no doubt but that • Doubtless
• He is a person who • He
• In a reckless manner • Recklessly
• This is a subject that • This
• For the purpose of • For
• In the same way as • Like
• Until such time as • Until
• During the time that • While
• In the event that • If
 
 
Here is a curable case of throat-clearing, from a law student's analysis of a hypothetical case:
 
An issue which has to be settled which pertains to the fact situation which deals with Abbott and Blair, who drove into a carwash to commit a theft is whether . . . Your re-write would probably resemble the one below:
 
In the case of Abbott and Blair, who drove into a carwash to commit a theft, the issue is whether . . . (Notice also that by putting the subject (issue) near to the verb (is), you make the sentence easier to read.)
 
If you don't "write with verbs," you may find yourself in a long wind-up. Here is a short list of possibilities:
For Substitute
• It is not necessary for you to • You need not
• It has been held by most courts • Most courts have held
• There are many points still to take into consideration • Many points still need considering
• If the error was the result of • If the error resulted from
• There are a few courts that have stated a rejection of • A few courts have rejected
 
 
Finally, long wind-ups sometimes contain the over-used "the fact that" a phrase that you should edit out of your writing most of the time. Delete such combinations as:
 
  • Due to the fact that
  • It is a well-known fact that
  • I should like to call your attention to the fact that
  • It is a true fact that
 
That last item particularly annoys some persons, since it also involves tautology, needless repetition of the same sense in different words. Other tautologies are new innovation, old antiques, four PM in the afternoon, erroneous misstatements, electrocuted to death, and he summed it all up in a final conclusion.
 
C. Don't Make Impossible Comparisons.
 
You wouldn't compare apples and oranges, so avoid comparing incomparable things in your legal writing. The following statement compares New York laws to Connecticut-not to Connecticut laws: "The laws of New York, unlike Connecticut, provide for restitution as an alternative to prison for first offenders." To correct the problem, rewrite the sentence in either of two ways:
 
The laws of New York, unlike those of Connecticut, provide for restitution as an alternative to prison for first offenders.
 
New York law, unlike Connecticut law, provides for restitution as an alternative to prison for first offenders. (These sentences could also be crafted differently, of course, as long as the comparisons were correctly stated.)
 
Here are some more impossible comparisons, from law students' writing, followed by corrected re-writes:
 
Like the deadly weapon in Bass, the defendant in Rogan used his boot to assault his victim. Like the Bass defendant, the Rogan defendant used his boot to assault his victim.
 
Like the court in Amsted v. Rich, the decision here should be based on probable cause. As in Amsted v. Rich, the decision here should be based on probable cause.
 
Unlike inter vivos gifts, the donee does not acquire full title to property until the donor's death. This donee, unlike the donee of an inter vivos gift, does not acquire full title to property until the donor's death.
 
D. Do Match Nouns and Verbs.
 
The mismatch of nouns and verbs, like other misalliances, can cause problems. Consider the following statement, from a student's paper:
 
The Brown court followed the common law dislike for third party limitations in estates that would otherwise be freely alienable. What the Brown court really did was follow the common law theory and express a dislike for certain limitations. The verb follow cannot have as an object the noun dislike (you can't follow a dislike). Here are some other examples of mismatched nouns and verbs, along with rewrites correcting the condition:
 
Statute § 460 states that deadly weapons obtained during the commission of a crime constitute burglary. Because deadly weapons cannot possibly constitute burglary, the sentence needs re-writing. A possible re-write is:
 
  • Statute § 460 states that the obtaining of deadly weapons during the commission of a crime constitutes burglary.
  • The judge rebuked the language of the defense attorney. But the verb rebuke requires a sentient being as its object. So rewrite the sentence so that the object of rebuke is a person:
  • The judge rebuked the defense attorney for his language. Will a Supreme Court decision cause rapes to "disappear"? That's what the next sentence seems to say:
  • A U.S. Supreme Court decision that will allow publication of rape victims' names may mean the disappearance of rapes reported to the police.
  • On closer inspection, one finds that the writer intends only to predict that the number of rapes reported will decrease. A more exact statement would be:
  • A U.S. Supreme Court decision that will allow publication of rape victims' names may mean a reduction in the number of rapes reported to the police. In the next sentence the noun/verb mismatch occurs because the verb "discriminate" requires a human noun as object.
  • The employer should not discriminate against an employee's religion. The sentence needs recasting to supply one:
  • The employer should not discriminate against an employee because of his religion. A noun/verb mismatch can also occur when one verb has two objects, but properly applies only to one:
  • U.C.C. section 2-207 affords advantages and drawbacks to industrial sellers. The verb affords properly refers to advantages, but is improperly forced to apply to drawbacks as well. A more neutral verb would correct the statement:
  • U.C.C. section 2-207 has advantages and drawbacks for industrial sellers. The same problem arises when two verbs have only one object, and the object is appropriate for only one of the verbs:
  • The evidence does not conclude but does support the fact that the information conveyed to the defendants was incorrect. Evidence can support but not conclude facts. A simple change will solve the problem: The evidence is not conclusive but it does indicate that the information conveyed to the defendants was incorrect.
 
To avoid noun/verb mismatches, read over what you have written and ask yourself, "Does the verb I have chosen really fit its subject? Is the object I have selected really the appropriate object for the verb?"
 
E. Use Metaphors—But Carefully.
 
Metaphors, skillfully used, will illuminate your writing and may make it memorable. Recall Winston Churchill, using a work metaphor, as he asked the United States to supply arms, not men, in World War II: "Give us the tools and we will finish the job."      (History records that we also sent men.)
 
But stale, mixed, or mangled metaphors will damage your writing. Your legal opponent may have thrown out the baby with the bathwater and sent a fox to guard the chicken coop, but find some other way to say it. Those metaphors are so stale that they have lost their vigor. Worse still is the stale metaphor that is also mixed. Here are some that have done their authors no credit:
 
  • State department spokesman: We are not going to play this game with all our cards face up on the deck. (Combination of poker and ship metaphors.)
  • Political campaign speech: Ifs a new ball-game, and we're playing with a full deck. (Combination of cards and sports metaphors.)
  • On voting: If we all unite, we will be a force that will be heard. (How do you "hear" a "force"?)
  • On taxation: We need to bridge the battle and erase the financial gap. (But one "wages" battles and "bridges" gaps.)
  • On an opponent's record: His record speaks louder than any smoke screen. (Does a smoke screen "speak"?)
 
Mangled metaphors are no less comic, although they contain not two images but only one, mangled. There is the well-known statement in the concurring opinion in Griswold v. Connecticut: "The Due Process Clause of the Fourteenth Amendment stands on its own bottom." Other mangled metaphors their authors would like to be forgotten:
 
  • The proof of the pie is in the pudding. (Administrator at a Florida college, who was attempting a stale metaphor, "The proof of the pudding is in the eating," but mangled it)
  • The dents don't make a bit of difference. You can't see them unless you use a fine tooth comb. (A well-known judge on a television program)
  • We've run so far down the road with entitlements that we're running up the wall and into the ground. (A U.S. senator)
  • We are creating a monster that's bound to backfire. (A city official criticizing annexation plans)
 
Metaphors tend to sneak into your writing when you are not watching. But get rid of the wrong kind.
 
Rule of Thumb: Never use trite metaphors, and be sure those you do use do their job.
 
F. Choose the Right Word.
 
As someone once commented, there's a lot of difference between your saying to a friend, "You look like the breath of spring," and "You Ipok like the end of a long hard winter."
 
All of us sometimes grasp for the right word and grab the wrong one. For example, there's the law student who received a coveted committee assignment and wrote the chairperson a grateful letter, which began, "1 have received your letter appointing me to the -__ committee and am looking forward to the assignation."
 
Judges are not immune from embarrassing locutions like the one above. From caselaw comes this interesting statement:
 
Navy physicians advised the plaintiff that they could not perform a vasectomy on the plaintiff; however, they advised his wife to have a tubal litigation.
 
Another judge wrote, "In an immediate sense, this [judgment] will add to the court's already damaged prestige." And a lawyer in a divorce action talked about a marriage being consummated, when he meant culminated
 
The obvious advice is: when in doubt, check your dictionary, then your legal dictionary before you write your final draft.
 

published December 07, 2016

By Author - LawCrossing
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