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SPEAKING AND WRITING
Lawyers are professional communicators. We communicate with judges and juries daily in order to persuade. We inaugurate this at-large column with a view towards improving our communication skills.
Language is the lawyer’s scalpel. If he cannot use it skillfully, he is apt to butcher his suffering client’s case.*
A. INTRODUCTION What judges want to see in a brief, and what juries want to hear in argument, is a reliable, clear and persuasive guide to a decision. As the final argument texts repeatedly stress, including Scott Baldwin’s jury argument article in this issue, the argument should be accurate, concise and complete. Judges in countless speeches and articles have stressed the same for briefs. The argument must be simply and clearly expressed, and facts stated candidly and accurately. These are uncompromising absolute rules. Good writing and speaking is clear thinking made visible and audible. It is an acquired skill. It is not easy to write well, or speak well, but with concentrated attention the lawyer can become proficient. The first requisite in going about this is a proper state of mind. The trial lawyer needs to take writing and speaking techniques seriously. The expression of thoughts must be as important as the thoughts themselves. He or she must understand that thinking and writing or speaking are indivisible. There are a great number of texts on communication skills. By far the best text on writing for lawyers is Girvan Peck’s Writing Persuasive Briefs (Little Brown & Co., 1984). Other useful texts are Joseph M. Williams, Style, Toward Clarity and Grace (Univ. of Chicago Press, 1990); Strunk and White, The Elements of Style (3rd Edition, McMillan Publishing Co., Inc., 1979); William Zinsser, On Writing Well (5th Edition, Harper Perennial, 1994); The Manual of Style for Connecticut Courts (Reporter of Judicial Decisions, 1993). Trial Communication Skills by Aron, Fast & Klein (Shepard’s/McGraw Hill, Inc., 1986) is an excellent text on non-verbal and verbal communication. Our focus in this first column is on writing. Some of us write by hand, others by typewriter, still others by word processor and some by talking into a dictating machine. Some write their first draft in one long burst, and later revise. Others can’t write a second paragraph until they have perfected the first. Writing well is very personal. There isn’t any right method to do such intensely personal work. Whatever works is the right method for that person. B. SIMPLICITY Simplicity is the cardinal rule of communication. Its nemesis, clutter, is the disease of legal writing, indeed, the disease of American writing. Zinsser (p. 7) uses the example of the airline pilot who "announces that he is presently anticipating experiencing considerable precipitation." He wouldn’t dream of saying that it may rain. That is too simple, and because it is simple something must be wrong with it. The secret of good writing is to strip every sentence to its cleanest components. Every word that serves no function, every long word that could be a short word, every adverb that carries the same meaning as the verb, and every passive construction that leaves the reader unsure of who is doing what are some of the thousand and one contaminants that weaken the strength of a sentence. Writing is hard work. Fighting clutter is like fighting weeds -- we are "always slightly behind" (Zinsser, p. 13). We offer twelve rules to improve writing. They are: 1. Use active voice. 2. Make the verbs do the work. 3. Put statements in positive form. 4. Use specific, concrete words. 5. Use short sentences. 6. Move all clauses to the beginning or the end of sentences, preferably the end. 7. Omit legalisms, jargon and pompous, trendy words. 8. Omit needless words and redundant phrases. 9. Use everyday language. 10. Don’t talk to your self. 11. Don’t hedge. 12. Always proof and edit.
1. USE ACTIVE VOICE The active voice is more direct and vigorous than the passive. Strunk and White illustrate (p. 18): I shall always remember my first visit to Boston. This is much better than My first visit to Boston will always be remembered by me. The latter sentence is less direct, less bold, and less concise. If the writer tries to make it more concise by omitting "by me," My first visit to Boston will always be remembered, it becomes indefinite: is it the writer or some other person undisclosed or the world at large that will always remember this visit? This rule does not, of course, mean that the writer should entirely discard the passive voice, which is frequently convenient and sometimes necessary. Another example helps clarify the point: The recommendation is made by this firm that the case not be settled by you for the $100,000 now offered. The meaning is clear, but consider the simplicity and directness of the active voice version: We recommend that you reject the $100,000 offer. To convert the passive voice verb to the active voice, name the doer of the action as the subject of the verb. The above example "our firm" is doing the recommending, so we revise the sentence to say "we recommend." The sentence is also shortened by converting the long passive phrase "that the case not be settled by you for the $100,000 now offered" into its active voice equivalent: "that you reject the $100,000 offer." Another example is: The ball was thrown by John. It is more direct and forceful to say: John threw the ball. It is unnecessary to use the active voice in every sentence, but recognizing and using the close connection between the subject and verb adds vigor and persuasion to a sentence. 2. MAKE THE VERBS DO THE WORK We often use verbs plus nouns to express ideas, rather than using the verb to directly express the meaning. For example: The recommendation (noun) is made (verb) ... By making a verb out of the noun recommendation, we shorten the sentence and make it more forceful: We recommend (verb) that you ... This is the point of C. Edward Good’s essay that appears in §D of this column. 3. PUT STATEMENTS IN POSITIVE FORM
This means make definite assertions. Use the word not as a means of denial or in explaining the opposite. Do not use it as a means of evasion. Strunk and White use the following examples (p. 19): He was not very often on time. changed to He usually came late . He did not think that studying Latin was a sensible way to use one’s time. changed to He thought the study of Latin a waste of time. These examples show the weakness inherent in the use of the word not. The reader is dissatisfied by being told what is not. He wishes to be told what is. As a rule it is better to express even the negative in positive form. not honest dishonest not important trifling did not remember forgot did not pay attention to ignored did not have much confidence in distrusted Don’t say "not old enough," say "too young." 4. USE SPECIFIC CONCRETE WORDS Legal concepts and issues are necessarily abstract. Legal writers often fall into the habit of writing or speaking entirely in abstract statements. These abstract statements rarely create a visual picture for the reader. The surest way to arouse and hold the attention of the reader is by being specific, definite and concrete. The words call up pictures. Justice Holmes called upon a vivid image to illustrate a limitation on free speech: You cannot yell fire in a crowded theater! Strunk and White (p. 21) give the following illustrations: A period of unfavorable weather set in. changed to It rained every day for week. He showed satisfaction as he took possession of his well-earned reward. changed to He grinned as he pocketed the coin.
5. USE SHORT SENTENCES Keep all sentences to 20 words or less. Less is better. Short, easily understood sentences should be the hallmark of the legal writer. 6. MOVE ALL CLAUSES TO THE BEGINNING OR THE END OF SENTENCES, PREFERABLY THE END We should say: John threw the ball before crossing the street. We can say: Before crossing the street, John threw the ball. We should not say: John, before crossing the street, threw the ball.
7. OMIT LEGALISMS, JARGON AND POMPOUS, TRENDY WORDS (a) Legalisms Use of legalisms in briefs results in stilted prose. They are to be purged wherever possible. Some examples are: said, aforesaid, aforementioned herein, hereat, hereafter, hereunder, hereinabove, hereinafter, heretofore therein, thereat, thereafter, thereunder, thereinbefore, thereinafter, theretofore wherein, whereat, whereafter, whereunder, whereinafter, wherefore The use of "supra" and "infra" are usually unnecessary, but if needed they should be explicit: see page 10 infra. The words former and latter require the reader to reread the sentence and are best avoided. The expression and/or is unnecessarily vague. Unnecessary specificity with names, or use of confusing labels, should be avoided. In the proposed Rules of Appellate Procedure published May 23, 1995 (56 Conn. Law J. No. 47, p. 31C) §4064 begins: In any brief or appendix, the plaintiff and defendant shall be referred to as such rather than as appellant and appellee, wherever it is possible to do so; ... Continuously repeating the client’s name in capital letters looks and sounds ridiculous. In briefs, as in any prose, surnames or abbreviations are preferable to monotonous repetition, so long as the references are clear. (b) Jargon and pompous, trendy words Peck (p. 28) quotes United States v. Marshall, 488 F.2d 1169, 1171, n. 1 (9th Cir. 1973) as an illustration: The agents involved speak an almost impenetrable jargon. They do not get into their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not go to a particular place; they proceed to its vicinity. They do not watch or look; they surveille. They never see anything; they observe it. No one tells them anything; they are advised. A person does not tell them his name; he identifies himself. A person does not say something; he indicates. They do not listen to a telephone conversation; they monitor it. People telephoning to each other do not say "hello;" they exchange greetings. Lawyers do the same thing. Examples given by Peck (p. 25) are: ameliorate for improve or get better deceased for died or dead effectuate for bring about elucidate for explain eventuate for happen expedite for speed implement for carry out or do indicate for say initiate for start rehabilitate for restore or improve remunerate for pay finalize or terminate for end utilize for use verbalize for express Sharp simple words are better. Not all of the above are pure jargon, but all are pretentious and dull. The reader has to concentrate in order to tell one word from another. Sharp simple words are better because the reader does not stumble over them. He grasps them right away, which means that he can go on immediately to the thoughts they express. 8. OMIT NEEDLESS WORDS AND REDUNDANT PHRASES Just as a machine should have no unnecessary parts, or a drawing unnecessary lines, a sentence should have no unnecessary words, and a paragraph no unnecessary sentences. This does not mean that the writer makes all sentences short, or that he avoids all detail and writes only an outline. It means that every word has a function. Many expressions in common use violate this rule. Strunk and White list the following examples (p. 24): the question as to whether whether (the question whether) there is no doubt but that no doubt (doubtless) used for fuel purposes used for fuel he is a man who he in a hasty manner hastily this is a subject that this subject His story is a strange one. His story is strange. the reason why is that because An expression that is especially debilitating is the fact that. It should be revised out of every sentence in which it occurs. owing to the fact that since (because) in spite of the fact that though (although) call your attention to the fact that remind you (notify you) I was unaware of the fact that I was unaware that (did not know) the fact that he had not succeeded his failure the fact that I had arrived my arrival Who is, which was, and the like are often superfluous. His brother, who is a His brother, a member of member of the same firm the same firm Trafalgar, which was Nelson’s Trafalgar, Nelson’s last battle last battle Other examples of redundant phrases in which one word or the other should be omitted are: claims and causes of action precisely and exactly wholly and totally secondly and furthermore first and foremost Occasionally an adjective or adverb is used that adds nothing to the word it modifies. For example: true facts binding contract obviously apparent completely finished past memories Sometimes redundant modifying language purports to define a word that needs no definition, as in the following: consensus of opinion later in time short in height many in number Time should be taken to remove redundancies like these. 9. USE EVERYDAY LANGUAGE Most legal documents have an intended audience of non-lawyers as well as lawyers and judges. Motions, orders, contracts, even briefs, are read by non-lawyers. Reliance on useless, antiquated or unclear phrases confuses laymen and lawyers. A good rule to follow is never use in a brief, contract or other legal document words that you would not use in everyday speech, except for words of art. There is no need to send the reader, judge or layman, to the dictionary. 10. DON’T TALK TO YOURSELF When writing, how often do we say: It is clearly the case that or It seems to me that or One might wonder that or I think that or It should be noted that Recitation of personal thought processes doesn’t belong in legal writing, even letter writing. Consider the following: When I first reviewed this matter I thought the statute of limitations had run. I then went to lunch with my partner and it dawned on me while walking back from lunch that there was not an isolated act or omission but rather a continuing course of conduct, and that course continued over the past five years ... The reader is not interested in what you first thought, who you went to lunch with, and when it dawned on you what the correct answer was. He or she is interested in the answer. 11. DON’T HEDGE This is very important in legal writing. It is ambiguous and unclear to use "seem," "apparently," "it may be." Use of these words creates confusion. When the writer states "the facts seem to indicate" or "the law apparently holds" we are fudging and hedging. It is the facts that are uncertain, or our understanding of them? Similarly, is the law unclear, or is our understanding of it unclear? Where there is uncertainty, it should be stated. The law is unclear on this point. The facts do not disclose. 12. ALWAYS PROOF AND EDIT The pressure of filing requirements and deadlines will always be with us. Failing to proof is unforgivable. Failing to edit is a mistake, although sometimes understandable. Always proof, and always edit. The art of writing is rewriting.
C. JUSTICE BREYER ON FOOTNOTES The New York Times reported on Friday, July 28, 1995 (p. B17) that in Justice Breyer’s opinion, a footnote has no place in a judicial opinion. The article states: Any reader of Supreme Court opinions knows that the devil is in the details: those pesky footnotes that Justices use to amplify, minimize or otherwise muddy what they have just written in the text. Justices also use footnotes to bash one another or, less frequently, to offer an olive branch to a colleague whose vote they need to hold a fragile majority. Given that contest, it is notable, if not unprecedented (no one keeps records on this sort of thing), that Justice Stephen G. Breyer went through is freshman year on the Court without writing a footnote. This was scarcely an oversight. In an interview with the Court’s employee newsletter, The Docket Sheet, published this week, Justice Breyer explained the origins of his footnote-less philosophy. He said he started shunning footnotes because of advice he received upon his first judicial appointment, to the Federal appeals court in Boston, from Justice Arthur Goldberg, whom he had served years earlier as a law clerk. An excerpt from the interview follows: Justice Goldberg was very pleased about my being appointed to the Court of Appeals and he said, "Don’t use footnotes," and somewhere quite soon after becoming a judge I did stop using footnotes. Sometimes it’s awkward to use none at all, but if in fact you even use one, then you cannot make the point. And it is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision. It’s not to prove that you’re right: you can’t prove you’re right, there is no such proof. And it’s not to create an authoritative law review on the subject. Others are better doing that than I. It is to explain as clearly as possible what the reasons are for reaching this decision. Others can then say those are good reasons or those are bad reasons. If you see the opinion in this way, either a point is sufficiently significant to make, in which case it should be in the text, or it is not, in which case, don’t make it.
D. "To Be" or Not "To Be": An Easy Way to Improve Legal Writing By C. Edward Good
C. Edward Good serves as writer-in-residence at the intellectual property firm of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C. He wrote Mightier than the Sword - Powerful Writing in the Legal Profession (1989). This article appeared in the May 1995 issue of Trial, and is reprinted here with permission. |