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Legal-Writing Resolutions for 2013 (Part One)

Wednesday, December 12, 2012 20:43

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(Before It's News)

I wonder if lawyers who are drafting last-minute briefs or closing year-end business deals are approaching the frenetic holiday season with the same vigor given that the December 21 Mayan apocalypse might—as lawyers are wont to say—“render moot” all of their hard work.

If you read my columns, though, you know that I’m generally skeptical of newfangled ideas. So instead of wringing my hands until December 21 arrives, I’m going to end 2012 optimistically by making 12 New Year’s resolutions that I know will improve my legal writing in 2013. And I’m asking you to join me.

But because lawyers are loath to do anything without the requisite formality and solemnity, we must begin with an oath:

In 2013, I do solemnly resolve to improve my legal writing by:

Excising “puff words.” David Foster Wallace called words and phrases like prior to, subsequent to, at this time, utilize, and individual “puff words.” Lawyers are addicted to them because they sound formal, and because many lawyers incorrectly believe that only knuckle-dragging simpletons are stupid enough to shun them. But in 2013, can’t we excise these “faddish affectations” and use simpler substitutes like before, after, now, use, and person? Even if the Mayans have sealed our fate, dropping puff words from our writing will come in handy if our 2013 year-end goal turns out to be recreating civilization instead of getting promoted.
Exhuming nominalizations/buried verbs. I addressed this issue here in July, but the world has yet to conform. To recap, a nominalization/buried verb is a noun that writers create from a verb. Burying verbs is another lawyer fetish because it allows lawyers to avoid writing clear, action-oriented sentences. Starting with holiday parties, then, can we resolve to talk to our colleagues instead of having conversations with them? Can partners just decide which associates should get a bonus instead of make a decision about the bonuses? And can’t we agree that it seems much harder to make a resolution to improve our legal writing than it is to simply resolve to do it?
Avoiding wordiness. Besides excising the puff words and exhuming nominalizations/buried verbs from our legal writing, let’s resolve to be less wordy in 2013. For example, instead of writing in order to, let’s write to. Instead of writing in light of the fact that or due to the fact that, let’s use because. Or how about substituting if for in the event of; or here for in the instant case; or according to for in accordance with; or besides for in addition to; or I received instead of I am in the receipt of; or Enclosed is instead of Enclosed please find herein? It is certain that (surely) our legal writing will prosper in 2013 if we relegate wordiness to the dustbin of 2012.
Striking throat-clearing phrases. Both William Zinsser (On Writing Well) and Bryan Garner (The Winning Brief #38) explain why throat-clearing phrases add nothing but noise. So in 2013, let’s resolve to banish from our legal writing meaningless throat-clearing phrases like I might add, It should be noted that, With all that said, It is important to remember that, It is respectfully submitted that, It is beyond dispute that, and There is no doubt that. If we need to pause between sentences to collect our thoughts, let’s take a break. But let’s not impose further on our already-overburdened readers by dragging them through these sentence-starting ruminations.
Learning about professional typography. Nothing says I graduated from law school before the 1990s than drafting a brief or contract that looks like it was cut-and-pasted from a Clinton Administration-era document. Much has changed since then (Courier font and straight quotes, for example, are no longer vogue). And it behooves all lawyers to learn how professional typography improves the look and readability of legal writing. If you don’t own it, start by giving yourself the gift of Matthew Butterick’s indispensable Typography for Lawyers. It’s the only resource a lawyer needs to keep this resolution.
Drafting contracts without shalls. Andy Mergendahl tackled the shall issue in 2011, but it’s worth revisiting because in August Bryan Garner made another desperate plea in the ABA Journal about finally retiring shall from legal writing. Garner noted that (with one exception) the federal civil rules no longer contain shalls. But if you’re still enamored with shall, here’s a statistic to consider: In 2009, Professor Joseph Kimble of Cooley Law School identified more than 1,600 appellate cases where the court had to resolve the meaning of shall. What a waste of client money. Shall we then resolve in 2013 to play our part in ridding legal writing of this nefarious word?