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Legal-Writing Resolutions for 2013 (Part Two)

Wednesday, December 19, 2012 18:52

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(Before It's News)

Last week, I thumbed my nose at the approaching Mayan apocalypse and gave the first 6 of my 12 legal-writing resolutions for 2013.

It perhaps was no surprise that one of those resolutions—eliminating shall from contracts—produced a fracas among the commentariat. After all, outworn canards will always have their diehards.

That digression aside, here are my other six legal-writing resolutions for the New Year.

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

Cutting inessential prepositions. Rigorous lawyers obsessively tighten their legal writing. Cutting needless or ambiguous prepositions helps do that. It’s easy, for example, to cut the prepositions from this sentence, which sports four ofs: The lawyer of the company filed the brief of the company with the office of the clerk of the district court. You can save nine words by cutting the ofs: The company’s lawyer filed its brief with the district-court clerk’s office. Besides cutting unnecessary ofs, the compound preposition as to causes trouble if used in mid-sentence because “it tempts to jargon and waste.” As Theodore Bernstein advises, instead of using the syntactically ambiguous as to, substitute sharper prepositions such as about, concerning, or regarding. Finally, neither of nor as to is needed between question and whether. Just write the question whether. Nobody will question whether you’ve correctly omitted the prepositions.
Purging pursuant to. Though pursuant to is a staple of many lawyers’ vocabularies, writing authorities generally shun it—Michele M. Asprey: ”[T]o most nonlawyers, it is one of the hallmarks of legalese. Ordinary people say under . . . or according to . . . . There is no reason why lawyers cannot do the same”; Bryan Garner: “This is pure legalese. It makes beginners feel as if they belong to a club, but it’s not a club you’d want to belong to”; Sir Ernest Gowers: “This is legal jargon . . . . Use under or according to.” But despite its condemnation, pursuant to remains a favorite of judges. According to Lexis-Nexis, in 2012 the Minnesota federal and state courts used pursuant to 2,054 times in opinions. Doubtless other states fared no better. Surely, purging pursuant to from legal writing shouldn’t be that difficult in 2013. Just Find-and-Replace it.
Dedicating time to rewriting. Lawyers need not follow Hemingway’s practice and rewrite their briefs 39 times; but as William Zinsser says: “Rewriting is the essence of writing well. . . . Many people assume that professional writers don’t need to rewrite; the words just fall into place. On the contrary, careful writers can’t stop fiddling.” And proofing is an indispensable part of the rewriting process. Consider John Trimble’s account of Yale English Professor Maynard Mack. When Professor Mack caught a student’s proofreading blunder, he told him that proofreading “is the most mechanical of tasks, requiring minimal intelligence. If a writer can’t be trusted with so mechanical a task, what then, . . . can he be trusted with?” In 2013, let’s not sacrifice the quality of our work and risk losing our readers’ trust by not dedicating sufficient time to rewriting.
Concluding forcefully. I admit that I’ve occasionally disregarded this resolution by writing fatigue-induced, one-sentence conclusions to briefs like: “For the reasons stated above, defendant respectfully requests that the Court . . . .” But lazy conclusions of this ilk waste the opportunity to make a final, emphatic impression. What’s tricky, though, is that there’s no standard form to an effective conclusion. John Trimble says to (a) focus on your main points; (b) add a new twist or phrase; and (c) end with emotion. William Zinsser advises writers to conclude, if possible, with a apt quotation. But however you choose to do it, in 2013 let’s chuck stock conclusions that contain the usual “pro forma bundle of words,” and resolve instead to compose thoughtful, forceful conclusions that actually add something to our work.
Reading outside of the law. Lawyers learn how to write well by reading good writing. They also learn how to write well by reading bad writing. As Stephen King says, “[e]very book you pick up has its own lesson or lessons, and quite often the bad books have more to teach than the good ones.” But lawyers won’t improve their writing by reading only bad writing because lawyers—like all readers—unconsciously imitate what they read. The challenge for lawyers is that most of what they read is dreadful—and unavoidable. Whether it’s casebooks filled with late-19th and early-20th-Century opinions, or law-review articles leaden with dead, obscure prose, lawyers can’t hide from bad legal writing. In 2013, then, let’s heed the advice of Chief Justice John Roberts, Seventh Circuit judge Frank Easterbrook, and former federal district-court judge James Rosenbaum, and put down the lawbooks and read some good prose.
Being reader-centric. Good writers empathize with their readers. In other words, they’re reader-centric. This principle is nothing new. In 1916, Sir Arthur Quiller-Couch said that style “resembles good manners. It comes of endeavouring to understand others, of thinking for them rather than yourself—or thinking, that is, with the heart as well as the head.” In the 1940s, Sir Ernest Gowers encapsulated this sentiment in a simple rule: “Be short, be simple, be human.” In taking our legal-writing inventory for 2012, did we disregard our clients’ sensibilities by sending them letters chock-full of legalese and obvious typographical errors? Did we waste judges’ time with uninspired introductions to briefs? Did we often give readers excuses to quit reading? If so, let’s begin 2013 by resolving to better appreciate and empathize with our readers’ needs. Readers will welcome the newfound goodwill; and we will be better lawyers for it.