1

Framing Your Thoughts

§ 1. Have something to say—and think it through.

What’s your biggest challenge as a writer? It’s figuring out, from the mass
of things you might possibly mention, precisely what your points are—
and then stating them cogently, with adequate reasoning and support.
Although this advice might seem obvious, legal writers constantly ig-
nore it. The result is a mushy, aimless style. And even with your point
well in mind, if you take too long to reach it, you might as well have no
point at all. Only those readers with a high incentive to understand you
will labor to grasp your meaning.
That’s where law school comes in. Every law student must read and
digest scads of diffuse writing. You read through old cases that take forever
to convey fairly straightforward points. You read law-review articles that
take 50 pages to say what might be said more powerfully in 5. And as you
read, your incentive for gleaning the main message remains high because
your future in law depends on it. You have no choice but to wade through
the opaque prose.
Take, for example, a sentence from a judicial opinion. See if you can
follow the court’s point:
And in the outset we may as well be frank enough to confess, and, indeed,
in view of the seriousness of the consequences which upon fuller reflection
we find would inevitably result to municipalities in the matter of street
improvements from the conclusion reached and announced in the former
opinion, we are pleased to declare that the arguments upon rehearing have
convinced us that the decision upon the ultimate question involved here
formerly rendered by this court, even if not faulty in its reasoning from the
premises announced or wholly erroneous in conclusions as to some of the
questions incidentally arising and necessarily legitimate subjects of discus-
sion in the decision of the main proposition, is, at any rate, one which may,
under the peculiar circumstances of this case, the more justly and at the
same time, upon reasons of equal cogency, be superseded by a conclusion
whose effect cannot be to disturb the integrity of the long and well-
established system for the improvement of streets in the incorporated cities
and towns of California not governed by freeholders’ charters.

What’s the court saying? In a highly embellished style, it’s simply saying,
“We made a mistake last time.” That’s all.
But if you add sentence after sentence to that embellished statement— 3
4 Part One. Principles for All Legal Writing

filled with syntactic curlicues—you end up with an even more impene-

trable morass of words. The only readers who will bother to penetrate it
are either law students or lawyers who are paid to do so.
However willing you might be to pierce through another writer’s obscu-
rity, you must as a writer insist on never putting your own readers to that
trouble. On the one hand, then, you’ll need a penetrating mind as a reader
to cut through overgrown verbal foliage. On the other hand, you’ll need a
focused mind as a writer to leave aside everything that doesn’t help you
swiftly communicate your ideas.
That’s the key to becoming an effective legal writer.

Exercises
Begin the following exercises by looking up the cases cited.
Then write a casenote for each one—that is, a short case synop-
sis that follows a standard form: (1) case name and citation;
(2) brief facts; (3) question for decision; (4) holding; (5) reason-
ing. Your finished product should fit on a five-by-seven-inch in-
dex card (front and back). The exercises are increasingly chal-
lenging for either or both of two reasons: first, the increasing
complexity of the legal principles involved; and second, the in-
creasing difficulty of the language used in the opinions. When
you’re finished, have a friend assess how easy it is to under-
stand what you’ve written.
Here’s an example of a casenote:
Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974).
Facts: While driving in city traffic, Henderson found that, despite repeated
attempts, she couldn’t brake. To avoid injuring anyone, she ran into a
pole. An investigator later found that part of a rubber gasket from the
air filter had gotten into the carburetor. Henderson sued Ford on vari-
ous theories, including defective design. Her expert witness didn’t criti-
cize the design of the gasket, carburetor, or air filter, but did say that
the positioning of the parts might have been better. No one testified
that the air-filter housing was unreasonably dangerous from the time
of installation. Yet the jury determined that the air-filter housing was
defective and that this defect had caused Henderson’s damage.
Question: The expert witness didn’t testify that the design was unreason-
ably dangerous—only that it could be improved on. Is this testimony
sufficient to support a jury finding that a product’s design is unreason-
ably dangerous?
Holding: Mere evidence that a design could be made better—without evi-
dence that the design itself was unreasonably dangerous—is insuffi-
cient to impose liability on a manufacturer.
Reasoning: A person suing on a design defect must provide some evidence
that the design of the product made it unreasonably dangerous. Specifi-
cally, the evidence must show that a prudent manufacturer who was
knowledgeable about the risks would not have placed the particular
product in the stream of commerce. Mere speculation that a product
might be improved on does not constitute evidence of a design defect.
A manufacturer is not required to design the best product scientifically
possible.
 § 2. Plan your writing projects 5

Basic
Write a casenote for Serrano-Moran v. Grau-Gaztambide, 195 F.3d 68 (1st
Cir. 1999). If you belong to a writing group or class, bring a copy of your
casenote for each colleague.

Intermediate
Write a casenote for Floudiotis v. State, 726 A.2d 1196 (Del. 1999). If you
belong to a writing group or class, bring a copy of your casenote for each col-
league.

Advanced
Write a casenote for Atlas Food Systems & Services, Inc. v. Crane National
Vendors, Inc., 99 F.3d 587 (4th Cir. 1996). If you belong to a writing group
or class, bring a copy of your casenote for each colleague.

§ 2. For maximal efficiency, plan your writing projects.

Try nonlinear outlining.
Writers work differently and often experiment with many methods before
settling into certain habits. But most writers need a way to set down their
yet-unformed ideas in some way other than a top-to-bottom order.
Once you have your points in mind—even if they’re not fully formed—
you’re ready to begin. But you’re not yet ready to begin writing sentences
and paragraphs. You’re ready to start outlining, which itself can be a
multistep process. Here we’ll discuss producing an outline that probably
won’t resemble the outlines you’ve tried for other writing projects. More
on this in a moment. First, let’s break down the writing process into its
component parts.
It’s useful to think of writing as a four-step process:
1. You think of things you want to say—as many as possible as quickly
as possible.
2. You figure out a sensible order for those thoughts; that is, you outline.
3. With the outline as your guide, you write out a draft.
4. After setting the draft aside for a matter of minutes or days, you come
back and edit it.
These four steps derive from a system developed by Dr. Betty Sue Flowers,
a University of Texas English professor. She has named each of the steps:
(1) Madman, the creative spirit who generates ideas; (2) Architect, the
planner who ensures that the structure is sound and appealing; (3) Carpen-
ter, the builder who makes the corners square and the counters level; and
(4) Judge, who checks to see whether anything has gone wrong.1 Each
character represents a separate intellectual function that writers must
work through.
The Madman, essentially, is your imagination. This character, though
brilliant, is almost always sloppy. When you’re in the Madman phase,
you’re going for copious thoughts—as many as possible. Ideally, though,

§ 2 1. See Betty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, 44
Proceedings of the Conference of College Teachers of English 7–10 (1979).
6 Part One. Principles for All Legal Writing

you won’t be writing out sentences and paragraphs. Rather, you’ll be jot-
ting down ideas. And if you get into the swing of it, your jottings will be
fast and furious.
You’ll need to protect the Madman against the Judge, who detests the
Madman’s sloppiness. If you don’t save the Judge for later stages in the
writing, the Madman could be at considerable risk. Writers commonly
have little battles in their heads if the hypercritical Judge is allowed to
start censoring ideas even as the Madman is trying to develop them. The
result is writer’s block. So learn to keep the Judge out of the Madman’s way.
The other steps are equally important.
Once you’ve let the Madman come up with ideas—in no particular
order—the Architect must arrange them. But it’s virtually impossible for
the Architect to work well until the Madman has had free rein for a while.
Although initially the Architect’s work might be nonlinear, you’ll ulti-
mately need a linear outline—a plan that shows the steps on the way from
the beginning, through the middle, to the end. Typically, in legal writing,
you’ll arrange your points from the most important to the least—and then
clinch the argument with a strong closer.
Next is the Carpenter’s turn as leader. This is where the writing begins
in earnest. Following the Architect’s specifications, the Carpenter builds
the draft. Of course, these specs make the Carpenter’s job much easier.
Ideally, the Carpenter writes quickly, treating the outline as a series of
gaps that need filling in.
For many people, the carpentry is the least pleasant part of writing.
They find it difficult to sit down and produce a draft. This problem stems
largely from skipping the Madman and Architect stages—as if any writer
could do three things at once: think of ideas, sequence them, and verbalize
them. That’s not the way it works, even for superb writers. In any event,
the Carpenter’s job becomes relatively easy if the Madman and Architect
have done their work.
Another thing to do, while playing the role of Carpenter, is again to
keep the Judge out of the way. If you’re constantly stopping yourself to
edit the Carpenter’s work, you’re slowing yourself down. And you’re get-
ting into a different frame of mind—that of editor, as opposed to writer.
Still, though, the Carpenter exercises considerable discretion in following
the Architect’s plans. The Carpenter will make architectural refinements
here and there when producing paragraphs and sections.
When you have a draft, no matter how rough, the Judge can finally take
over. For many writers, this is where the fun begins. You have the makings
of a solid piece of writing, but now you can fix the ragged edges. The
Judge does everything from smoothing over rough transitions to correcting
grammar, spelling, and typos. An alternative name for the Judge is “Jani-
tor” because a big part of what the Judge does is tidy up little messes.
Each character has an important role to play, and to the extent that you
slight any of them, your writing will suffer. If you decide, for example, to
“rough out” a draft by simply sitting down and writing it out, you’ll be
 § 2. Plan your writing projects 7

starting at the Carpenter phase. You’ll be asking the Carpenter to do not

just the carpentry, but also the Madman’s and the Architect’s work. That’s
a tall order. People who write this way tend to procrastinate.
If you decide that you can begin with Roman numeral I in an outline,
you’ll still be asking a lot: the Architect will have to dream up ideas and
sequence them simultaneously. And whatever your I–II–III order happens
to be will probably become fossilized in later drafts. Most writers’ minds
aren’t supple enough to allow part IV to become part I(D) in a later draft,
even if it logically belongs there.
That’s why it’s critical to allow the Madman to spin out ideas in the
early phases of planning a piece. In a perfect setting, the ideas come to you
so rapidly that it’s hard to get them all down as your mind races.
One way of doing this—and of getting yourself into the Madman frame
of mind—is to use a nonlinear outline. Among lawyers, the most popu-
lar type of nonlinear outline is the whirlybird. It starts out looking like
this:
8 Part One. Principles for All Legal Writing

A shorthand name for the project goes in the center. Then you begin
adding ideas—the more the better. For every major idea you have, use a
branch off the center circle. For supporting ideas, try branching off from
a major branch. Everything you might want to mention goes into the
whirlybird—which has no top and no bottom. You’re striving for copious
thoughts without having to worry about getting them in the right order.
Here’s an example:

ef or discipline
Caus
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ex
imp
nonviolent
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§19

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572

t policy
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policies

c nal appeal— upheld

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Actu
Exam

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w
Casela
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Eff
Typ

e Dismissal
plac k Gene for
ral principles re wor threats
Benn d

Thro
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Penf ing
uish
ett

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Salient

history at company able wer/Moores

is

mi
Sup ssa
ervis l no
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d

ism
facts

Sup fa isse
ervis eat ce dO
or took it as serious thr tiou K
s t hr rea
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“I’m l thr
gonna eat
get you for this”
nd
a t c am reprima t h re
e on heels of

Once you’ve finished a whirlybird—whether it takes you ten minutes

or ten hours—you’ll probably find it easy to work the elements into a
good linear outline. You’ll know all the materials. It will just be a matter
of having the Architect organize them sensibly. The next step might look
like this:
 § 2. Plan your writing projects 9

Dismissal for Violence at Work

1. Main issue: Upon being reprimanded, Penfold threatened his supervisor by saying,
“I’m gonna get you for this!” The supervisor immediately fired Penfold. Was the
termination justified?
2. Detailed ƒactual statement
3. General principles re threatened violence at work
• Corporate policy statements
• Type of threat involved
• General/ specific
• Violent/nonviolent
• Effect on others
• Coworkers
• Target
• Examples relating to safety in µodern workplace: OK City, Airport, Post Office.
4. Caselaw on similar threats: under Thrower/Moores doctrine, dismissal justified
if threat seems real to reasonable person.
5. Decision in this case: the ƒacts suggest that threat was real. Internal
appellate-review board agreed.
6. Conclusion

Once you have this type of linear outline—something that many writers
can create only if they do a nonlinear outline first—writing your first draft
becomes much less intimidating. More on this in a moment.
Lawyers who have tried using the whirlybird before drafting a linear
outline commonly cite several advantages:
● As a stress-free way of generating ideas, it encourages creativity. You
eliminate the straitjacketing effect of As, Bs, and Cs, which can cause
you to force ideas into premature categories.
● At the same time, the whirlybird can help in free-form categorizing.

● It makes getting started fairly easy. You can avoid writer’s block.

● It helps you think of things you might otherwise miss.

● As the same idea emerges in different contexts, you can see more

clearly the interconnections between your ideas.

● It’s a great way to find your key points—to distill your thoughts.

● Brainstorming is easier because the creative mind tends to jump back

and forth. And the whirlybird is an excellent reminder of ideas that

might otherwise get dropped.
● Once you know all the options, you can more confidently select what

your lead will be.

Once the Architect has finished organizing the Madman’s ideas, the Car-
penter’s job—the one that writers most often procrastinate on—becomes
relatively easy. It’s just a matter of elaboration. Further, the Judge will be
able to focus on tiny matters of form, and that’s what the character is best
suited for. The Judge shouldn’t have to think on several levels at once.
If you were to give me a pile of writing samples, I’d critique them ac-
cording to this paradigm. The writer who allows typos in the final draft
10 Part One. Principles for All Legal Writing

needs work on the Judge. The writer who uses no headings (see § 4), and
for whom it would be difficult to devise headings once a draft is done,
needs work on the Architect. The writer who has problems with bridging
(see § 25) needs work on the Carpenter. The writer whose prose is “cor-
rect” but dry and dull needs work on the Madman.
Each character in the Flowers paradigm must have its time as leader.
What you don’t want to do is let one character dominate so much that the
others get squeezed out. The writing will suffer.
Perhaps the most crucial phases—because they’re the most unpredict-
able and mysterious—are the first two: Madman and Architect. They will
determine the degree of originality and insight in your writing. If you
don’t consciously involve them, the Carpenter will waste a lot of time. A
carpenter must follow plans.
So, as you can see, writing well is much more than getting the grammar
and spelling right. Those are matters for the Judge, who in the end will
tidy things up. Just remember that the Judge part of your brain won’t
contribute many interesting or original thoughts.
Although you might fear that you’ll never have time to go through all
four phases, try it: it’s one of the surest and quickest ways to good writing.
In a one-hour span, you might spend 10 minutes as Madman, 5 minutes
as Architect, 25 minutes as Carpenter, and 10 minutes as Judge—with
short breaks in between. That’s a productive way to spend an hour. But it
won’t happen without conscious planning. You have to plan how you’re
going to turn mushy thoughts into polished prose.

Exercises
Basic
While planning and researching a legal memo, fill out a whirlybird. (You’re
ready to begin once you know enough about the problem to have an idea or
two.) Use unruled paper. Take your time. Fill as many major and minor
branches as you can, and feel free to add more branches. Then, when the
paper starts getting full—and only then—create a linear outline using bul-
lets. Remember that you’re working on the basic unit of organization: once
you have that, you’ll organize further according to issues and answers.

Intermediate
Do the same with a trial or appellate brief.

Advanced
Do the same with a journal article or continuing-legal-education paper. For
this one, you might need a large sheet of butcher paper.

§ 3. Order your material in a logical sequence. Use chronology

when presenting facts. Keep related material together.
Though ordering your material logically might not seem difficult, it will
often be one of your biggest challenges. This is especially so because of
some odd conventions in law. One example among many is the stupefying
use of alphabetized organization in certain contracts. That is, some forms
 § 3. Order your material in a logical sequence 11

actually have provisions in alphabetical order according to headings: as-

signments, default, delivery, indemnity, notices, payment, remedies, and
so on. A better strategy—if clarity is the goal—is to follow the logic and
chronology of the deal. In what order are the parties to do things?
Even when narrating events, legal writers often falter when it comes to
chronology. Disruptions in the story line frequently result from opening
the narrative with a statement of the immediately preceding steps in liti-
gation. Here, for example, is a judge’s opener that recites events in reverse
chronological order—a surprisingly common phenomenon:

This is an appeal from an order of the Circuit Court of Jackson County

entered February 10, 1999, affirming the June 20, 1998 order of the Missis-
sippi Workers’ Compensation Commission directing the Jackson County
School District to pay immediately the assessed amount of $52,218 to the
South Mississippi Workers’ Compensation Fund.

For most readers, that doesn’t easily compute.

Even if the order isn’t a reversed chronology, but merely starts in the
middle of a story, the reader’s difficulties can be great. Consider a before-
and-after example. It comes from an amicus brief submitted to a state
supreme court, seeking to overturn a lower court’s ruling on an aspect of
the state’s oil-and-gas law. Here’s the original two-paragraph opener, in
which the two meanings of hold in the first paragraph present a stum-
bling block:

I. Introduction
The Court of Appeals held that capability of the lease to produce in pay-
ing quantities does not hold an oil and gas lease after the primary term and
that actual marketing is necessary to perpetuate the lease in the secondary
term. The Court of Appeals’ holding is contrary to the fundamental prin-
ciple of Arkansas oil and gas law that marketing is not essential to hold a
lease where there is a well capable of producing in paying quantities.
The Court of Appeals’ decision will create title uncertainty in thousands
of oil and gas leases in this state. As this Court is well aware, thousands of
wells across Arkansas have been shut-in or substantially curtailed from
time to time. Under the Court of Appeals’ decision, it will be argued that
many of these currently productive and profitable Arkansas oil and gas
leases terminated years ago if there was a timeframe when gas was not taken
from the lease in paying quantities for the period specified in the cessation
of production clause—often as short a time as sixty days. The issues of this
case already affect a dozen or more cases now being litigated in Arkansas.
The Court of Appeals’ decision will encourage waste of a valuable natural
resource and harm lessors and lessees by requiring continuous marketing
of gas even at fire-sale prices.

Could you track the argument there? Does it hold any dramatic value?
Now consider the revision. Note the greater emphasis on story,
achieved in part simply by highlighting the historical perspective and
tucking in some transitional words. Note, too, the heightened drama of
the case (on which millions of dollars were riding):
12 Part One. Principles for All Legal Writing

I. Introduction
Since first considering the issue more than 30 years ago, the Arkansas
Supreme Court has consistently held that the word “produced”—as used in
the habendum clause of an oil-and-gas lease—means “capable of producing
in paying quantities.” The Court of Appeals in this case overrode that settled
principle by holding that: (1) capability to produce in paying quantities does
not maintain an oil-and-gas lease after the primary term—rather, gas sales
and deliveries are necessary to perpetuate a lease in the secondary term; and
(2) the cessation-of-production clause is a special limitation to the haben-
dum clause. The court further held, incorrectly, that equities may be ignored
in determining whether a lease terminates.
These holdings, besides being legally incorrect, are apt to prove cata-
strophic, since they will create title uncertainty in thousands of oil-and-gas
leases in this state. As this Court well knows, thousands of wells across
Arkansas have been shut in or substantially curtailed from time to time.
Under the new ruling, litigants will argue that many currently productive
and profitable Arkansas oil-and-gas leases actually terminated years ago
when, for whatever reason, gas was not taken from a lease in paying quanti-
ties for the period specified in the cessation-of-production clause—often as
short a time as 60 days. Indeed, the issues in this case already affect a dozen
or more Arkansas cases in various stages of litigation. The Court of Appeals’
decision, besides encouraging waste of a vital natural resource, and besides
spawning needless litigation, will harm lessors and lessees alike by requir-
ing continuous marketing of gas, even at fire-sale prices.

Ask yourself about the qualities that distinguish the two versions.
What is the sequence of each? Which one is more logically organized,
assuming that these are the first words a reader encounters? Did either
version make you feel stupid when you first started reading it? What does
that say about the writing?

Exercises
Basic
Improve the sequence of ideas in the following sentence. Start like this: “In
March 2000, Gilbert Spaulding applied to the Workforce Commission for
extended unemployment benefits.” Then use one or two extra sentences.
● The lower court did not err by affirming the Workforce Commission’s denial of
Spaulding’s request for extended unemployment benefits, since those benefits were
not available during the period for which he sought eligibility.
Improve the sequence and phrasing of ideas in these sentences, perhaps by
breaking them into separate sentences:
● The state supreme court reversed the intermediate appellate court’s affirmance of a
summary judgment granted to Pilsen Corporation, the plaintiff, which had only
requested a partial summary judgment on the discrete issue of fraud.
● The issue is whether Davis Energy has granted its neighbors an easement to use a
private road that enters a Davis fuel-storage yard, when for three years Davis has
had a guard at the road’s entrance but has posted no other notice about private prop-
erty or permission to enter, and for seven years the owners of adjacent property have
used the road to reach their own property.
 § 3. Order your material in a logical sequence 13

● The Plaintiff Los Angeles Dodgers, a corporation with offices and its principal office
in Los Angeles, California, is the owner of a professional baseball team that, since
1958, has played baseball in Los Angeles, California, and before 1958 played baseball
in Brooklyn, New York, under the name “the Brooklyn Dodgers,” but in that year
moved the site of its home games from Brooklyn to Los Angeles.

Intermediate
Rewrite the following passages to reassemble the elements in chronological
order. Again, you might need to break one or more sentences into separate
sentences.
● This action arose out of a request by Pan-American to cancel its surety bond posted
with the Land Reclamation Commission to ensure reclamation on a portion of the
Prelancia Fuels mine site. The Commission filed a petition for declaratory judgment
and application for a temporary restraining order and preliminary injunction on Feb-
ruary 16, 1996, to determine whether Pan-American could lawfully cancel its surety
bond. Pan-American made its request after legislation had been passed that, ac-
cording to Pan-American, would increase its liability under the bonds. The trial
judge disagreed with Pan-American. At the request of the Commission, after a brief
evidentiary hearing, a temporary restraining order and preliminary injunction were
granted on February 16, 1996, preventing Pan-American from canceling the bond at
issue until final judgment on the declaratory-judgment action.
● In Sinclair, the court awarded the niece of Sinclair a constructive trust. Sinclair’s
niece was suing Purdy’s estate for one-half interest in property that she claimed her
uncle owned and had promised to bequeath to her in exchange for caring for him
until his death. The court observed that the property was purchased in his sister’s
name. This was done for business purposes and because he and his sister shared a
close relationship. There was also an agreement between the siblings that the sister
would be allowed to keep only half the property. The court ruled that withholding
the property from the niece would be a breach of promise; hence, a constructive
trust was awarded in favor of the niece.
● Kathcart filed the instant patent application on April 11, 2000, more than one year
after he filed counterpart applications in Greece and Spain on November 21, 1998.
Kathcart initially filed an application in the U.S. on November 22, 1997, claiming
most of the same compounds as in the instant application. When he filed abroad,
however, in 1998, he expanded his claims to include certain ester derivatives of the
originally claimed compounds. It is the claims to these esters, which Kathcart has
made the subject of a subsequent continuation-in-part application, the application
now before the court, that are the issue here. Both foreign patents issued prior to
the instant application in the U.S., the Greek patent on October 2, 1999, and the
Spanish patent on January 21, 2000.

Advanced
Find a published case in which the presentation of the facts is marred by
disruptions in chronology. Write a short explanation specifying why the un-
chronological narrative was difficult for you to read. Rewrite the factual
statement as best you can, omitting irrelevant facts and putting in brackets
any facts you might want to add (but weren’t given in the case itself). If you
belong to a writing group or class, bring a copy of your before-and-after
versions for each colleague.
14 Part One. Principles for All Legal Writing

§ 4. Divide the document into sections, and divide sections into

smaller parts as needed. Use informative headings for the
sections and subsections.
Once you’ve determined the necessary order of your document, you
should divide it into discrete, recognizable parts. This may well present a
serious challenge because the legal mind isn’t very good at division. Its
strength is multiplication—multiplying thoughts and multiplying words.
Still, with a little effort, you can learn to divide a document into readable
segments of text. You can do this even as you’re writing.
While you’re figuring out a structure, make its parts explicit. This will
help both you and your readers. The more complex your project, the sim-
pler and more overt its structure should be. When writing a memo or brief,
try thinking of its contents as a series of points you want to make. Each
point will account for a chunk of the whole—a chunk on this, a chunk on
that, yet another chunk on this other point. For each of these parts, ask
yourself, “What would make a pithy section heading here?” Then put it
in boldface so that it really stands out. You’ll probably need to go even
further by devising subheadings as well. Small sections are far easier than
large ones to organize logically. And busy readers welcome having a
stream of information divided up this way.
State and federal judges routinely emphasize this point at judicial-
writing seminars. They say that headings and subheadings help them keep
their bearings, let them actually see the organization, and afford them
mental rest stops. Another advantage they mention is that the headings
allow them to focus on the points they’re most interested in.
In fact, headings have many advantages:
● Whether you realize it or not, they help you organize your thoughts
into categories.
● They give readers their bearings at a glance.

● They provide some visual variety to your pages.

● They make the text skimmable—an important quality for those in

a hurry.
● They instantly signal transitions.
● When collected into a table of contents, they provide a road map for

the whole document, however long it might be (see § 45).

You’d think these things would be obvious. But to many writers, they’re
not.
Let’s take a short example—a paragraph from an amended agreement
of sale. At first it might look all right:
4.5 Upon the additional property closing, the Purchaser will:
(A) authorize the title company to release the additional property es-
crow funds to the Additional Property Seller;
(B) execute and deliver such documents as may be reasonably required
by the Additional Property Seller or the title company;
(C) deliver a certificate of good standing, a certificate of Purchaser’s cor-
porate existence, and copies of all documents requested by the Ad-
 § 4. Divide the document into sections 15

ditional Property Seller to show the Purchaser’s corporate exis-

tence;
(D) execute and deliver the additional bill of sale, assuming the obliga-
tions under the additional contracts from the date of the additional
property closing and the obligation relating to the physical and en-
vironmental condition of the additional property;
(E) at the additional property closing, Purchaser and the Additional
Property Seller will execute and deliver an additional closing state-
ment setting forth the amount held in the additional property es-
crow and all prorations, adjustments, and credits to that escrow,
and, if necessary, a post-closing agreement for the additional prop-
erty closing for any adjustments based on estimates that are to be
readjusted after the additional property closing.

The problem is that paragraph 4.5 has been plopped into the midst of
paragraphs 4.1, 4.2, 4.3, 4.4, 4.6, and so on—not one of which has a head-
ing. Without significant effort, the reader won’t be able to see what each
paragraph is about.
“Well,” the naysayer might object, “agreements of sale aren’t supposed
to be pleasure reading. After all, other lawyers are paid to read them!” But
that’s not really an argument you can make with a straight face. And we’re
not talking just about making the reader’s task more pleasurable.
When you put a heading on the paragraph, look what happens:
4.5 Purchaser’s Obligations upon Closing. Upon the additional property
closing, the Purchaser will:
(A) authorize the title company to release the additional property es-
crow funds to the Additional Property Seller;
(B) execute and deliver such documents as may be reasonably required
by the Additional Property Seller or the title company;
(C) deliver a certificate of good standing, a certificate of Purchaser’s cor-
porate existence, and copies of all documents requested by the Ad-
ditional Property Seller to show the Purchaser’s corporate exis-
tence;
(D) execute and deliver the additional bill of sale, assuming the obliga-
tions under the additional contracts from the date of the additional
property closing and the obligation relating to the physical and en-
vironmental condition of the additional property;
(E) at the additional property closing, Purchaser and the Additional
Property Seller will execute and deliver an additional closing state-
ment setting forth the amount held in the additional property es-
crow and all prorations, adjustments, and credits to that escrow,
and, if necessary, a post-closing agreement for the additional prop-
erty closing for any adjustments based on estimates that are to be
readjusted after the additional property closing.

Subparagraph (E) suddenly sticks out: it doesn’t fit within the category of

the heading, and it doesn’t fit with the other subparagraphs. (On parallel-
ism, see § 9.) We’ll need to do something about it. Depending on the larger
context, we’ll either put it as a subparagraph somewhere else or make it a
paragraph of its own. But all this might have been difficult to see if we
16 Part One. Principles for All Legal Writing

hadn’t gone to the trouble to think about headings for every decimal-
level paragraph.
A device as simple as headings can help you think more clearly.

Exercises
Basic
Find a pre-1950 law-review article or treatise with long stretches of text
uninterrupted by headings. Devise appropriate headings. If, as a result of
this exercise, you find that the organization is poor, note the organizational
deficiencies. If you’re a member of a writing group or class, bring a copy of
the relevant pages and be prepared to explain where your headings would
go and to discuss any organizational problems you uncovered.

Intermediate
In a state administrative code, find a regulation having at least three sec-
tions with headings that don’t adequately describe the sections’ contents.
Devise better headings. If you’re a member of a writing group or class, be
prepared to explain why your edits would improve the regulation.

Advanced
Find a proxy statement or prospectus with long stretches of uninterrupted
text. Break up the long paragraphs into smaller paragraphs and add headings
where appropriate. For a model of this approach, see Garner, Securities Dis-
closure in Plain English §§ 41–43 (1999). If, as a result of this exercise, you
find that the organization is poor, note the organizational deficiencies. If
you’re a member of a writing group or class, bring a copy of the relevant
pages and be prepared to explain where your headings would go and to dis-
cuss any organizational problems you uncovered.
 2

Phrasing Your Sentences

§ 5. Omit needless words.

Three good things happen when you combat verbosity: your readers read
faster, your own clarity is enhanced, and your writing has greater impact.
Both you and your readers benefit.
The following sentence, at 35 words, isn’t grossly overlong, but it’s still
quite verbose. It comes from the Code of Federal Regulations:
It is not necessary that an investment adviser’s compensation be paid di-
rectly by the person receiving investment advisory services, but only that
the investment adviser receive compensation from some source for his or
her services.

Nearly two-thirds of the sentence can be cut with no loss in meaning—

but with enhanced speed, clarity, and impact:
Although the investment adviser must be paid, the source of the payment
does not matter.

Imagine how this helps in sentence after sentence, paragraph after para-
graph.
Take a longer sentence, at 79 words, from a recent law-review article:
Since, under the Equal Employment Opportunity Commission Guidelines
pertaining to sexual harassment, an employer is liable for hostile-
environment sexual harassment only if it knew or should have known of
the harassment and failed to take prompt and effective steps to end the
harassment, it is possible for employers to be exonerated from liability for
hostile-environment sexual harassment when sexual harassment has oc-
curred by individuals within an organization, but the organization took
prompt action to prevent further harassment.

That sentence meanders. And its basic point tends to get lost in the welter
of words. Cut to its essence, the thought itself seems more coherent:
EEOC Guidelines allow courts to exonerate an employer from liability for
hostile-environment sexual harassment if the employer acts promptly to
prevent further harassment.

At 24 words, the rewrite is two-thirds shorter than the original. But that
figure only hints at the heightened vigor and lucidity.
The English language has vast potential for verbosity. Almost any writer
can turn a 15-word sentence into a 20-word sentence that says the same 17
18 Part One. Principles for All Legal Writing

thing. Many writers could make it a 30-word sentence. And a truly skilled
verbiage-producer could make it 40 words without changing the mean-
ing. In fact, almost all writers unconsciously lengthen their sentences in
this way.
Reversing this process is a rare art, especially when you’re working
with your own prose. You see, you’re likely to produce first drafts that are
middlingly verbose—each sentence being probably a quarter or so longer
than it might be. If you know this, and even expect it, you’ll be much less
wedded to your first draft. You’ll have developed the critical sense needed
to combat verbosity.

Exercises
Basic
Delete at least four consecutive words in the following sentences and re-
place those words with just one word. You may rephrase ideas and rearrange
sentences, but don’t change the meaning.
● Even assuming that the fog caused injury to Roelke, Amskills had no duty to pre-
vent that injury because it was idiosyncratic and Amskills could not have been
expected to foresee such injury.
● At no time prior to the initial public offering did the underwriters or any officers,
directors, or employees have knowledge of any facts that would suggest that “Palm
Harbor” could not be completed on schedule and in accordance with specifications.
● Beale has wholly failed to allege facts that, if true, would establish that competition
among the nation’s law schools would be reduced or that the public has been in
any way injured, and this failure to allege facts that would establish an injury to
competition warrants the dismissal of her restraint-of-trade claim.
● The Business Corporation Law does not address the ability of a New York corpora-
tion to indemnify individuals who are not its employees.
● The court examined a number of cases and stated that there appeared to be only a
limited number of instances in which there would exist a duty to disclose the illegal
conduct of persons who, through political campaigns, seek election to a public
office.

Intermediate
Revise the following sentences to make them as lean as you can without
changing the meaning:
● The County sent an inspector who made observations as to the condition of the
sidewalk and concluded that it was uneven.
● Although a review of the caselaw reflects that there are no decisions in the Eleventh
Circuit concerning this issue, the great weight of federal authority favors the exclu-
sion of third parties from a Rule 35 independent medical examination.
● There is caselaw for the proposition that use restrictions are not always strictly
enforced when a lease is assigned by a tenant in bankruptcy and the property in
question is not part of a shopping center.
● The court appeared to premise much of its opinion upon the argument that consum-
ers stand at a significant disadvantage in product-liability actions based on ordinary
negligence principles. Consequently, strict product liability was intended to relieve
the plaintiff of the burden of having to prove actual negligence.
 §6. Keep average sentence length to about 20 words 19

● With respect to matters not covered by the provisions of the Uniform Rules for the
New York Court of Claims (the Uniform Rules), the Court of Claims adheres to the
rules set forth in the Civil Practice Law and Rules (the CPLR). Ct. Cl. R. § 206.1(c).
Because the Uniform Rules do not discuss disclosure of expert witnesses, it follows
that the Court of Claims’ rules on the subject are governed by the CPLR.
● There are cases that are factually similar to the present case, but that are controlled
by older statutes—i.e., the pre-1965 legislative scheme. There are no cases that have
been explicitly decided under § 1511 since the 1965 amendment, so it is unclear
what effect the amendment has on cases that are factually similar to the present
case.
● Arbitration as a means of settling disputes was at first viewed by the courts with
much disfavor, but today is being used increasingly as a substitute for litigation for
the adjudication of disputes arising out of contracts.
● The court rejected the defendant’s argument that the headlines were not the product
of sufficient skill or effort, finding that because many of the headlines consisted of
eight or so words that imparted information, copying of the headlines might at least
in some instances constitute copyright infringement.
● To say that one who has contracted to serve for a number of years at a low salary or
at distasteful work and seeks to better his or her condition by a contract with an-
other party should be penalized in every case by inability to enforce this second
contract seems harsh, and under these or other extenuating circumstances, the
courts have often deemed damages to be sufficient recompense to the injured em-
ployer without also invalidating the second contract.

Advanced
Rewrite the following 193-word paragraph in fewer than 130 words without
changing the meaning:
In addition to the two cases cited just above, both (as mentioned) dealing with the
California State Bar Rules of Conduct, Rule 3–310 of the California State Bar
Rules of Professional Conduct describes circumstances in which an attorney is
embroiled in the representation of adverse interests. Rule 3–310 is concerned pri-
marily with situations in which the attorney’s duty of loyalty and duty of confi-
dentiality to clients are called into question. Therefore, to date, there are no Rule
3–310 cases disqualifying a district attorney as a result of a prosecution of an
individual whom the district attorney used or is used as a witness in another
prosecution. Most cases that involve district-attorney conflicts under Rule 3–310
consist of a former attorney-client relationship between an accused and a district
attorney. In such cases, the rule serves to protect an accused from a prosecution
in which a district attorney unfairly benefits from information gained during the
course of his or her representation of the accused. Other Rule 3–310 cases involve
overzealous prosecutions in cases where a district attorney is for one reason or
another personally or emotionally interested in the prosecution of the accused.

or
Find a wordy sentence that you can reliably cut in half without changing
the meaning. Cut it. If you’re a member of a writing group or class, bring a
copy of the before-and-after versions for each colleague.

§ 6. Keep your average sentence length to about 20 words.

The length of your sentences will determine the readability of your writ-
ing as much as any other quality. That’s why readability formulas rely so
heavily on sentence length.1
§ 6 1. See, e.g., Rudolf Flesch, How to Write in Plain English: A Book for Lawyers and Consumers
20–27 (1979); Robert Gunning, The Technique of Clear Writing 32–34 (1952).
20 Part One. Principles for All Legal Writing

Not only do you want a short average; you also need variety. That is,
you should have some 35-word sentences and some 3-word sentences, as
well as many in between. But monitor your average, and work hard to keep
it to about 20 words.
In law, many things converge to create overlong sentences. One is the
lawyer’s habit of overparticularization—the wretched practice of trying to
say too many things at once, with too much detail and too little sense of
relevance (see § 23). Another is the fear of qualifying a proposition in a
separate sentence, as if an entire idea and all its qualifications must be
squeezed into a single sentence. A third is the nonsense baggage that so
many writers lug around: the idea that it is poor grammar to begin a sen-
tence with And or But. And a fourth is the ill-founded fear of being simple
and, by implication, simpleminded—of perhaps seeming to lack sophisti-
cation.
Many legal writers suffer from these turns of mind. And the ones who
do must work hard if they wish to pursue a clear, readable style.
Is a 20-word goal realistic? Many good writers meet it, even when dis-
cussing difficult subjects. Consider how Professor W.W. Buckland—with
an average sentence length of 13 words—summed up part of the philoso-
pher John Austin’s thought:
Austin’s propositions come to this. There is in every community (but he
does not really look beyond our community) a person or body that can enact
what it will and is under no superior in this matter. That person or body he
calls the Sovereign. The general rules that the Sovereign lays down are the
law. This, at first sight, looks like circular reasoning. Law is law since it is
made by the Sovereign. The Sovereign is Sovereign because he makes the
law. But this is not circular reasoning; it is not reasoning at all. It is defini-
tion. Sovereign and law have much the same relation as center and circum-
ference. Neither term means anything without the other. In general what
Austin says is true for us today, though some hold that it might be better to
substitute “enforced” for “commanded.” Austin is diffuse and repetitive and
there is here and there, or seems to be, a certain, not very important, confu-
sion of thought. But with the limitation that it is not universally true, there
is not much to quarrel with in Austin’s doctrine.2

The style is bold, confident, and quick. More legal writers ought to emu-
late it.
But is this type of style achievable in law practice? You bet. Here’s a
splendid example from a response to a motion to continue, by Thomas D.
Boyle of Dallas:
Gunther demanded an early trial date and breakneck discovery. What
Gunther wanted, Gunther got. Now that Findlay seeks a hearing on its
summary-judgment motion, however, Gunther wants to slam on the brakes,
complaining that it needs more time to gather expert opinions. Gunther
ostensibly demanded the accelerated trial date to force a prompt resolution
of its claims. Gunther may now have that resolution, but does not want it.

2. W.W. Buckland, Some Reflections on Jurisprudence 48 (1945).

 § 7. Keep average sentence length to about 20 words 21

Must Findlay’s motion, already delayed once, be delayed again to accommo-

date Gunther’s tactical timetable? . . .
Gunther’s motion to continue is tactical only. It lacks authority and
merit. It is no more than an attempt to get more time to answer Findlay’s
motion for summary judgment, which has already been reset once. Even so,
by the time Findlay’s motion is heard on August 13, Gunther will already
have had eight weeks to prepare a response. If Gunther wants to defeat Find-
lay’s motion, it needs only to identify disputed facts for each point in the
motion. Indeed, Gunther spends much of its motion for continuance ar-
guing the merits. Rather than wasting time and money with its delay tac-
tics, Gunther should simply address the points in Findlay’s motion head on.
If Gunther shows the existence of genuine factual issues, then so be it.

Although these sentences vary in length, the average is just 15 words. The
variety, coupled with the short average, improves readability and generates
speed and interest.

Exercises
Basic
Break each of the following long sentences into at least three separate sen-
tences:
● Appellee Allied Indemnity of New York respectfully suggests that oral argument
would be of little benefit because the dispositive issue has been recently authorita-
tively decided by the Texas Supreme Court in National Union Fire Insurance Co.
v. CBI Industries, Inc., 907 S.W.2d 517 (Tex. 1995), and by this Court in Constitu-
tion State Insurance Co. v. Iso-Tex, Inc., 61 F.3d 405 (5th Cir. 1995), because the
facts and legal arguments are adequately presented in the briefs and record, and
because the decisional process would not be significantly aided by oral argument.
[91 words]
● Although no Kansas cases were found that explicitly hold that Kansas requires a
corporation to have a valid business purpose in order to engage in certain specified
corporate transactions, either for mergers or consolidations, or for a sale of assets
followed by a dissolution and liquidation, in a 1994 Supreme Court of Kansas case
involving a cash-out merger where the dissenters claimed the defendant’s board of
directors breached its fiduciary duties to the dissenters, the court cited as one of the
trial court’s pertinent conclusions of law that it is not necessary for a corporation
to show a valid corporate purpose for eliminating stockholders. [105 words]
● The court of appeals noted that the Environmental Protection Agency (EPA) had
already issued the applicant a National Pollution Elimination System permit for
the actual discharge of wastewater, which would occur from the outfall pipe, and
that the issuance and conditions of such permits were generally exempt under the
Clean Water Act from compliance with the Environmental Impact Statement (EIS)
requirement, and accordingly the court concluded that the Corps had properly ex-
cluded the environmental implications of the discharges from the outfall pipe from
its analysis and instead considered only the construction and maintenance of the
pipeline itself in determining that the issuance of the permit did not constitute a
major federal action. [112 words]

Intermediate
Rewrite the following passages to make the average sentence length under
20 words:
22 Part One. Principles for All Legal Writing

● At best, the lack of precise rules as to the treatment of routine corporate transac-
tions forces investors and others who seek to understand accounting statements in
all of their complex fullness to wade through pages of qualifying footnotes, the ef-
fect of which is often to express serious doubts about the meaningfulness and accu-
racy of the figures to which the accountants are attesting. Equally bad, while the
footnotes, carefully read and digested, may enable the sophisticated analyst to arrive
at a reasonably accurate understanding of the underlying economic reality, the com-
parison of figures published by one firm with those of any other is bound to result
in seriously misleading distortions. Indeed, the figures for any given company may
not be comparable from one year to the next, for although auditing standards require
that the principles used by a firm must be “consistently applied” from year to year,
the “presumption” of consistency may be overcome where the enterprise justifies
the use of an alternative acceptable accounting principle on the basis that it is pref-
erable. [Average sentence length: 57 words]

● It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a legiti-
mate religious belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a state interest of
sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgment of the need for
universal formal education, the Religion Clauses had specifically and firmly fixed
the right to free exercise of religious beliefs, and buttressing this fundamental right
was an equally firm, even if less explicit, prohibition against the establishment of
any religion by government. The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the expense of other in-
terests of admittedly high social importance. The invalidation of financial aid to
parochial schools by government grants for a salary subsidy for teachers is but one
example of the extent to which courts have gone in this regard, notwithstanding
that such aid programs were legislatively determined to be in the public interest
and the service of sound educational policy by states and by Congress. [Average
sentence length: 51 words]

● Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built
wood-and-canvas lawn chair that was then and there located in the back yard of the
above described premises, moved it sideways a few feet and seated himself therein,
at which time he discovered that the plaintiff, Ruth Garratt, was about to sit down
at the place where the lawn chair had formerly been, at which time he hurriedly
got up from the chair and attempted to move it toward Ruth Garratt to aid her in
sitting down in the chair, whereupon, due to the defendant’s small size and lack of
dexterity, he was unable to get the lawn chair under the plaintiff in time to prevent
her from falling to the ground. [Average sentence length: 126 words]

● Since it is undisputed that the sugar was stolen, and that it was purchased by John-
son, the question at issue for jury determination is the state of Johnson’s mind when
he purchased it. While the jury is unauthorized to convict unless it finds that John-
son himself had guilty knowledge, such knowledge may be proved by circumstances
here to warrant the conclusion that Johnson, when he purchased the sugar, knew it
to have been stolen, and did not in fact honestly believe that the sellers were sugar
dealers or were properly authorized by the Ralston Mill to sell sugar for it. In arriv-
ing at this conclusion, the jury might have considered the time and arrangements
for the purchases, statements of Johnson to Gordon showing that he knew that he
was taking a risk, the absence of any invoice or regular billing procedure, the con-
tradictory statements of Johnson after his arrest, and the unlikelihood of the sell-
ers’ having come into possession of such large quantities of sugar to be sold be-
low wholesale price in a legal manner. [Average sentence length: 58 words]
 § 7. Keep the subject, the verb, and the object together 23

Advanced
Find a published piece of legal writing in which the average sentence length
exceeds 40 words. Rewrite it to make the average under 20.

§ 7. Keep the subject, the verb, and the object together—toward

the beginning of the sentence.
Once you’ve worked to create sentences of manageable length, the next
step is to arrange the elements of your sentences in a logical order. A
sentence has two vital elements: a subject and a predicate (typically con-
sisting of a verb and an object). It seems simple:

The partnership may buy a bankrupt partner’s interest.

But legal sentences get complicated, and legal writers often complicate
them unduly by separating the vital words:

If any partner becomes a bankrupt partner, the partnership, at its sole op-
tion, exercisable by notice from the managing general partner (including
any newly designated managing general partner) to the bankrupt partner (or
its duly appointed representative) at any time prior to the 180th day after
receipt of notice of the occurrence of the event causing the partner to be-
come a bankrupt partner, may buy, and upon the exercise of this option
the bankrupt partner or its representative shall sell, the bankrupt partner’s
partnership interest.

Even if you needed some of the details in that second version, you’d be
better off keeping the related words together, at the outset:

The partnership may buy any bankrupt partner’s interest. To exercise its
option to buy, the managing general partner must provide notice to the
bankrupt partner no later than 180 days after receiving notice of the event
that caused the bankruptcy.

The reason you should put the subject and verb at or near the beginning
is that readers approach each sentence by looking for the action. So if a
sentence has abundant qualifiers or conditions, state those after the sub-
ject and verb. Itemize them separately if you think a list might help the
reader. You’d certainly want to restructure a sentence like this one:

In the event that the Indemnitor shall undertake, conduct, or control the
defense or settlement of any Claim and it is later determined by a court
that such Claim was not a Claim for which the Indemnitor is required to
indemnify the Indemnitee under this Article VI, the Indemnitee shall, with
reasonable promptness, reimburse the Indemnitor for all its costs and ex-
penses with respect to such settlement or defense, including reasonable at-
torney’s fees and disbursements.

Putting the subject and predicate up front, as well as listing the two condi-
tions separately (see § 34), makes the sentence easier to understand:
24 Part One. Principles for All Legal Writing

The Indemnitee must promptly reimburse the Indemnitor for all its costs
and expenses of settlement and defense, including reasonable attorney’s fees
and disbursements, if:
(a) the Indemnitor undertakes, conducts, or controls the defense or settle-
ment of any claim; and
(b) a court later determines that the claim was not one for which the Indem-
nitor must indemnify the Indemnitee under this Article VI.

Remember: related words go together.

Exercises
Basic
Edit the following sentences to cure the separation of related words:
● Ms. Lenderfield, during the course of her struggle to provide for her children as a
single parent, accrued considerable debt to her family and others.
● Chesapeake’s assertion that it is not a proper defendant in this case and, therefore,
that relief cannot be granted is incorrect.
● The court, in finding that Officer McGee was acting more as a school employee
than as a police officer in searching Robinson, ruled that an official’s primary role
is not law enforcement.

Intermediate
Edit the following sentences to cure the separation of related words:
● Plaintiff’s testimony that he had never had a back injury and had never been treated
by a doctor for a back ailment before this workplace accident is suspect.
● The Trustee, at any time, by an instrument in writing executed by the Trustee,
with the concurrence of the City Council evidenced by a resolution, may accept the
resignation of or remove any cotrustee or separate trustee appointed under this
section.
● In Barber v. SMH (US), Inc., the Michigan Court of Appeals held that the plaintiff’s
reliance on a statement made by the defendant that “as long as he was profitable and
doing the job for the defendant, he would be defendant’s exclusive representative” as
establishing an oral contract for just-cause employment was misplaced.
● Taxes imposed by any governmental authority, such as sales, use, excise, gross-
receipts, or other taxes relating to the equipment, except for the personal-property
tax, for which Biltex, Inc. is assessed and liable by applicable law, must be reim-
bursed by Calburn, Inc.

Advanced
Find a published legal example of either subject–verb separation or verb–
object separation. (The worse the separation, the better your example.) Re-
type the sentence, with the citation, and then type your own corrected ver-
sion below it. If you’re a member of a writing group or class, bring a copy of
your page for each colleague, and be prepared to discuss your work.

§ 8. Prefer the active voice over the passive.

Remember it this way: if you’re active, you do things; if you’re passive,
things are done to you. It’s the same with subjects of sentences. In an
 § 8. Prefer the active voice over the passive 25

active-voice construction, the subject does something (The court dis-

missed the appeal). In a passive-voice construction, something is done to
the subject (The appeal was dismissed by the court).
The active voice typically has four advantages over the passive:
● It usually requires fewer words.
● It better reflects a chronologically ordered sequence (active: actor →
action → recipient of action), as opposed to the reverse (passive: recipi-
ent of action → action → actor).
● It makes the reader’s job easier because its syntax meets the English-

speaker’s expectation that the subject of a sentence will perform the

action of the verb.
● It makes the writing more vigorous and lively.

Although these advantages generally hold true, they are not absolutes.
You’ll find exceptions from time to time—situations in which you’ll want
the passive (as when the actor can’t be identified or is relatively unimpor-
tant). If you can reliably spot passive-voice constructions, and quickly
assess the merits of an active-voice alternative, you’ll be able to make
sound judgments.
Reliably spotting the passive is your biggest challenge. Less than 50%
of lawyers can do it consistently. But it’s not so hard. Here’s a fail-safe test:
if you see a be-verb (such as is, are, was, or were) followed by a past partici-
ple (usually a verb ending in -ed), you have a passive-voice construction.
Look for phrases like these:

is dismissed
are docketed
was vacated
were reversed
been filed
being affirmed
be sanctioned
am honored

So all the following sentences are passive:

● In 1998, only ten executives were covered by Article 12.
● Prospective investors are urged to consult their own tax advisers.
● The 2001 Plan is intended to facilitate key employees in earning a

greater degree of ownership interest in the Company.

We can improve these sentences by changing them to active voice:

● In 1998, Article 12 covered only ten executives.

● We urge prospective investors to consult their own tax advisers.

● With our 2001 Plan, we intend to help key employees obtain a

greater ownership interest in the Company.

With a little effort, you’ll find yourself marking passages in this way:
26 Part One. Principles for All Legal Writing

In the absence of proper venue, this Court should dismiss the petition.
B. Venue is improper in this district, and the petition should (be dismissed).
ERISA venue provision (29 U.S.C. § 1132(e)(2)) governs the
The Plaintiff’s choice of forum . in this instance (is governed ) by the ERISA

venue provision, 29 U.S.C. § 1132(e)(2). Section 1132(e)(2) does not allow the plaintif
to maint f
ain
this action to ( be maintained) in the Eastern District of New York. Further,
Court should dismiss the
this action should ( be dismissed) under 28 U.S.C. § 1406(a) because the
Plaintiff is engaged in blatant forum-shopping. In such circumstances, it is
Court need not transfer the case ,
not required that the case be transferred, since the Defendants do not have

significant contacts with the Eastern District of New York:

of unsuccessful
• At the time when the Plaintiff’s claim for benefits was denied, the
kept offices
offices of the Plan Administrator were located in Bethlehem,
Pennsylvania.

• As of September 10, 1999, the offices of the Plan Administrator

( were moved) to Omaha, Nebraska. does not an office
• No office of the Plan Administrator (is maintained) in the Eastern
District of New York.
’s insurer ,
• The benefits under the Plan (are insured) by Cosmopolitan Casualty
operates
and Life, in New York.
Plaintiff also lacks any connection to the Eastern District of New York.

When she filed her claim for benefits, she resided in Manhattan, which ( is

located ) in the Southern District of New York. Plaintiff currently resides in

Westchester County, which is likewise in the Southern District.

Once you learn to mark pages that way, you’ll have mastered passive
voice. And in gaining this skill, you’ll find that there are many subtleties.
One of these is that, in some passive-voice constructions, the be-verb
is understood in context. That is, although a grammarian would say it’s
implied, you won’t be able to point to it in the sentence. For example:
Last week, I heard it argued by a client that national insurance should cover
all legal fees.

Grammatically speaking, that sentence contains the implied verb being

after the word it, so part of the sentence (not I heard, but it argued) is in
the passive voice. To make it active, you’d write:
Last week, I heard a client argue that national insurance should cover all
legal fees.

In sum, the active voice saves words, says directly who has done what,
and makes for better, more interesting prose.
 § 8. Prefer the active voice over the passive 27

Exercises
Basic
Edit the following sentences to eliminate the passive voice:
● Testimony was heard from the plaintiff and from three witnesses on behalf of the
corporation.
● This is a purely legal question to be determined by the court.
● McCormick’s motion for partial summary judgment on the duty to defend should
be denied.
● Plaintiff’s opposition violates Rule 313 of the California Rules of Court and may be
disregarded by the court.

Intermediate
Count the passive-voice constructions in the following paragraphs. Decide
which ones you would change to active voice. Change them.
● The intention of the donor is established at the moment the funds are dedicated to
a charitable cause. This dedication imposes a charitable trust for the donor’s objec-
tive as effectively as if the assets had been accepted subject to an express limitation
providing that the donation was to be held in trust by a trustee solely for the purpose
for which it was given. It is imperative that the objectives of individuals who give
to charity be strictly adhered to.
● There are situations in which a motion for rehearing should be granted. Before the
enactment of CPLR § 5517, it was held that when such a motion was granted, any
appeals from the prior order would be dismissed. The CPLR was amended to “alter
caselaw holding that an appeal from an order had to be dismissed upon entry in the
court below of a subsequent order.” [Citation.] Thus today, § 5517(a) states that after
a notice of appeal from an order has been served, the original appeal will not be
affected if a motion for rehearing is entertained. The appeal will be neither mooted
nor canceled by the grant or denial of a motion for rehearing.
● Jurisdiction was conferred on the district court by 28 U.S.C. § 1331. The complaint
was dismissed with prejudice on March 31, 1999, and judgment was entered in favor
of the Cauthorns. A timely notice of appeal was filed by Perkins on April 7, 1999.
Jurisdiction is conferred on this court by 28 U.S.C. § 1291.
● During the taxable years at issue, the replacement fuel assemblies had not begun to
be used by the company for their specifically assigned function, namely, to generate
electrical power through nuclear fission. Nor were the assemblies placed in a state
of readiness for their intended use during the years in which they were acquired.
That did not occur until the spring of 2000, when, after more than a year of careful
planning, the reactor was shut down, various maintenance tasks were performed,
spent fuel assemblies were removed, the reactor was reconfigured using the new
fuel assemblies in conjunction with partially spent assemblies that were not re-
placed, and low power testing was performed to ensure that the reconfigured reactor
core performed safely in accordance with specifications. Only after those procedures
had been successfully completed did the replacement fuel assemblies generate sal-
able electric power and, hence, income to taxpayer. Only at that point could the
replacement fuel assemblies be considered to have been placed in service.

Advanced
Find a published passage—two or three paragraphs—in which more than
50% of the verbs are in the passive voice. Retype it, providing the citation.
Then, beneath the original, show your rewritten version.
28 Part One. Principles for All Legal Writing

or
In the literature on effective writing, find three authoritative discussions of
the situations in which the passive voice can be preferable to the active.
Consolidate what those authorities say. In how many situations is the pas-
sive voice better?

§ 9. Use parallel phrasing for parallel ideas.

Just as you should put related words together in ways that match the
reader’s natural expectations, you should also state related ideas in similar
grammatical form. Parallelism harmonizes your language with your
thoughts. At its simplest, it’s a device for balancing lists:
Adverbs
The jury weighed the evidence carefully, skillfully, and wisely.
Adjectives
The arguments were long, disorganized, and unpersuasive.
Nouns
The facilities are available to directors, officers, and corporate
counsel.
Verbs
The perpetrator drove to Minnesota, changed cars, and dropped the
box on the side of the road outside St. Paul.
Avoid constructions in which the listed elements don’t match, as here:
To prove a claim of false advertising under the Lanham Act, Omega must
show that Binnergy (1) made a false or misleading statement, (2) that actu-
ally deceived or was likely to deceive a substantial segment of the advertise-
ment’s audience, (3) on a subject material to the decision to purchase goods
or services, (4) about goods or services offered in interstate commerce, (5)
that resulted in actual or probable injury to Omega.

In that example, #1 is a predicate, #2 is a subordinate clause beginning

with that, #3 and #4 are prepositional phrases, and #5 is another that-
clause. Let’s instead try leading off all the items with verbs, using only
one that to introduce the list:
To prove a claim of false advertising under the Lanham Act, Omega must
show that Binnergy made a statement that (1) was false or misleading, (2)
actually deceived or was likely to deceive a substantial segment of the adver-
tisement’s audience, (3) related to a subject material to the decision to pur-
chase goods or services, (4) related to goods or services offered in interstate
commerce, and (5) resulted in actual or probable injury to Omega.

The English language has many methods of phrasing that require paral-
lelism. They’re called “correlative conjunctions,” and they frame match-
ing parts. The four most common pairs are these:
both . . . and
either . . . or
 § 9. Use parallel phrasing for parallel ideas 29

neither . . . nor
not only . . . but also
For example, if a verb follows not only, then a verb must likewise follow
but also. Here, though, the writer got it wrong:
Domestic violence is a force that causes suffering not only to the victim of
an attack, but it also has detrimental effects on any children in the home.
The sentence needs matching parts for the not only . . . but also construc-
tion. This revision fills the need:
Domestic violence causes suffering not only to the victim of an attack but
also to any children in the home.
Be sure that you phrase corresponding ideas within a sentence so that
they correspond grammatically. This shows an orderly mind at work.

Exercises
Basic
Revise the following sentences to cure the unparallel phrasing:
● The court relied heavily on the district court’s statement that the would-be interve-
nors retained the right to appear through counsel, to participate in the fairness hear-
ing, to conduct discovery, and standing to appeal the court’s approval or disapproval
of the class-action settlement.
● Tenant will probably not be able to have the lease declared void and unenforceable
for vagueness because it contains all the essential elements of a lease: a description
of the premises, the amount of rent to be paid, the term of the lease, and identifies
the parties.
● The Younger doctrine also applies to a state civil proceeding that is (1) ongoing, (2)
implicates important state interests, and (3) affords an adequate opportunity to raise
federal claims.

Intermediate
Rewrite the following paragraph from a loan agreement so that you high-
light the parallel phrases. The parenthetical letters—except for “(A)”—have
been deleted. Simply reinsert the missing parenthetical letters “(B)” and
“(C)” for the phrases that are parallel to the phrase introduced by “(A).”
Study the passage first. Once you’ve decided where the letters should go,
set off the listed items separately (see § 34). You might want to edit the
sentence, of course. But be careful not to change the meaning.
2.1 No Default or Violation of the Law. The execution and delivery of this Loan
Agreement, or the bond indenture, and any other transaction documents by
the Authority, will not result in a breach of the terms of, or constitute a default
under, (A) any indenture, mortgage, deed of trust, lease, or other instrument
to which the Authority is a party or by which it or any of its property is bound
or its bylaws or any of the constitutional or statutory rules or regulations ap-
plicable to the Authority or its property.

Advanced
Revise the following sentences to cure the unparallel phrasing:
● The essential elements of a fraud claim under New York law are that:
(1) the defendant made a misrepresentation
(2) of a material fact
30 Part One. Principles for All Legal Writing

(3) that was intended to induce reliance by the plaintiff

(4) which was in fact relied upon by the plaintiff
(5) to the plaintiff’s detriment.

● Where there are already allegations of defects in design, manufacturing, and warn-
ings, a claim that the manufacturer should have recalled its 1999 products is redun-
dant, prejudicial, and directed to the wrong institutional forum.

● Under Georgia law, the elements necessary for the application of equitable estoppel
are (1) a false representation or concealment of facts, (2) it must be within the
knowledge of the party making the one or concealing the other, (3) the person af-
fected thereby must be ignorant of the truth, (4) the person seeking to influence
the conduct of the other must act intentionally for that purpose, and (5) persons
complaining must have been induced to act by reason of such conduct of the other.

§ 10. Avoid multiple negatives.

When you can recast a negative statement as a positive one without chang-
ing the meaning, do it. You’ll save readers from needless mental exertion.
A single negative often isn’t very taxing:

No more than one officer may be in the polling place at a given time.

Still, the positive form is more concise and direct—and equally emphatic:

Only one officer may be in the polling place at a given time.

But when a sentence has more than one needless negative, the meaning
can get muddled:

A member who has no fewer than 25 years of credited service but has not
yet attained the age of 60 years and is not eligible for retirement may not
voluntarily retire early without first filing a written application with the
board.

Change no fewer than to at least; has not yet attained to is under; and
may not . . . without to a different construction entirely, using must. Then
make a few other edits, and the sentence becomes much more cogent:

Even if you’re a member who is not otherwise eligible for retirement, you
may voluntarily retire if you are under the age of 60 and have at least 25
years of credited service. To do this, you must file a written application with
the board.

These techniques won’t always work, of course. If you’re stating a prohi-

bition, you’ll need to use a negative (“Don’t leave the footpath”). One
airline avoids this type of directness in a lavatory sign: “Please discard
anything other than tissue in the trash dispenser.” What this really means
is, “Please don’t discard anything except tissue in the toilet.” You wonder
how many people bother to puzzle out the roundabout message of the
 § 11. End sentences emphatically 31

original—which seems prompted by a desire to avoid using the word toi-

let. Still, avoiding the negative in that instance is awkward at best.
Although it’s not an absolute, accentuate the positive when you can.

Exercises
Basic
Recast the following sentences in a more positive, straightforward way:
● Notice will not be effective unless it is delivered in person or by certified mail,
return receipt requested.
● In the absence of any proof to the contrary, the court should presume that the ad-
ministrator’s functions have not ceased.
● No termination will be approved unless the administrator reviews the application
and finds that it is not lacking any requisite materials.

Intermediate
Recast the following sentences in positive form:
● There is no issue of material fact that Renfro cannot establish that Aniseed, Inc.
owed her a duty to prevent the injury she claims to have suffered.
● Bendola cannot be permitted to stand on nothing more than unsubstantiated and
self-laudatory statements as a basis for denying summary judgment.
● No reason for refusing confirmation of the master’s report not covered by the excep-
tions in the rule is disclosed by the record or urged by the defendants.
● A plan shall not be treated as not satisfying the requirements of this section solely
because the spouse of the participant is not entitled to receive a survivor annuity
(whether or not an election has been made), unless both the participant and the
spouse have been married throughout the one-year period ending on the date of the
participant’s death.

Advanced
Find a sentence in published writing that is burdened with at least two
negatives that you can easily—and with no change in meaning—recast in
the positive. If you’re a member of a writing group or class, provide each
colleague with a copy of the original (with a citation) and your revised
version.

§ 11. End sentences emphatically.

Amateurs often write sentences that, at the very end, fizzle. But profes-
sional writers know that a sentence’s final word, whatever it may be,
should have a special kick. So if you want to avoid sounding like a bureau-
cratic bore, perk up your endings. Consider:
● Melinda Jackson died three weeks later in Columbus, Ohio.
● Melinda Jackson died in Columbus, Ohio, three weeks later.
● Three weeks later, while visiting Columbus, Melinda Jackson died.

The first emphasizes the place of death—probably a poor strategy. The

second emphasizes the time of death—again, probably poor. The third
32 Part One. Principles for All Legal Writing

emphasizes the death itself. That’s almost certainly what the writer in-
tended.
With virtually any sentence, you have a choice about what you want to
stress. Make it a conscious choice.
Again and again, you’ll find that the most emphatic position in a sen-
tence isn’t the beginning, but the end. Just as it’s unwise to end a sentence
with a date (unless the date is all-important), it’s usually unwise to end
one with a rule number or a citation:
Fenster International Racecourse, Inc. respectfully asks this Court to enter
a summary judgment and, further, to find that there is no just reason to
delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304A.

A little reordering can make a big difference:

Fenster International Racecourse, Inc. respectfully asks this Court to enter
a summary judgment and to find that, under Illinois Supreme Court Rule
304A, there is no just reason to delay enforcement or appeal.

When you make this type of adjustment in sentence after sentence, you
brighten the style.

Exercises
Basic
Rewrite the following passages to make the sentence endings more em-
phatic:
● This Court dismissed the whistleblower claims against the Governor on August 27
in response to the Governor’s Plea to the Jurisdiction.
● The right to stop the work is the single most important factor in determining
whether a party is in charge of the work within the meaning of the Act.
● The Commission is not in a position to provide additional affidavits and other evi-
dence to support its contention that Bulworth and Islington are an integrated enter-
prise at this time.
● The court may authorize a preappearance interview between the interpreter and the
party or witness if it finds good cause.
● Silver Sidings contends that it had no control over the hazardous substance released
to create the emergency, and that the Department of Natural Resources therefore
has no jurisdiction over Silver Sidings under the Spill Bill (see § 260.510, RSMo
1994). In fact, Silver Sidings owned the property where the release occurred, owned
the underground storage tanks from which the hazardous substance was released,
permitted the hazardous substances to be stored in its tanks on its property, and had
every right as a landowner to control how its land and tanks were used—all relevant
factors under the Spill Bill. Thus, Silver Sidings is “a person having control over
a hazardous substance involved in a hazardous-substance emergency” within the
meaning of the Spill Bill.

Intermediate
Find a journalist’s article in which the last word in the article is especially
arresting. Be prepared to explain why.
 § 11. End sentences emphatically 33

or
In published legal writing, find a paragraph in which the sentence endings
are unemphatic. Rewrite the paragraph to spruce it up.

Advanced
In the literature on effective writing, find support for the idea that sentences
should end emphatically. If you belong to a writing group or class, prepare
a page with at least three quotations to this effect. Provide full citations to
your sources.
 3

Choosing Your Words

§ 12. Learn to detest simplifiable jargon.

In addition to mastering grammatical consistency and simplicity, develop
an intolerance for unnecessary jargon. Every profession has its own jargon.
In a medical record, you shouldn’t be surprised to read that the doctor
“observed a fungal infection of unknown etiology on the upper lower left
extremity.” For some doctors, the word etiology (meaning “cause”)—as
well as dozens of other phrases such as the patient is being given positive-
pressure ventilatory support (meaning “the patient is on a ventilator”)—
reinforces one’s identity as a doctor.
Similarly, in police reports you’ll frequently encounter passages like
this one:
When Officer Galvin entered the lot, he observed the two males exiting the
lot. He then initiated a verbal exchange with a female white subject, who
stated that she had observed two male whites looking into vehicles. When
she pointed out the subjects as the two male whites who had exited the lot
previously, Officer Galvin promptly engaged in foot pursuit of them.

All this gets recorded with a straight face. For the police officer, linguistic
oddities such as engaging in foot pursuit of (meaning “running after”)—
as well as absurdly formal word choices like observed (“saw”), exiting
(“leaving”), initiated a verbal exchange (“started talking”), stated
(“said”), male whites (“white men”)—are part of what makes one feel like
a genuine police officer.
Essentially the same thing holds true for lawyers.
Yet to the educated person who isn’t a doctor, a police officer, or a
lawyer, those who use jargon sound more than a little silly.
You’ll labor to acquire legalese (it’s something you must understand),
and then you’ll labor to give it up in your own speech and writing—that
is, if you want to speak and write effectively. Legalisms should become
part of your reading vocabulary, not part of your writing vocabulary.
But what, exactly, is a legalism? The term refers not to unsimplifiable
terms of art (like habeas corpus) but to legal jargon that has an everyday
English equivalent. Among the extreme examples are these:
Legalism Plain English
anent about
dehors the record outside the record
34 inter sese among themselves
 § 12. Learn to detest simplifiable jargon 35

motion for vacatur motion to vacate

sub suo periculo at one’s own peril

These examples are extreme because few people use them today. They
don’t present much of a threat to your writing style because you’ll be
sensible enough to avoid them.
The real danger comes with commonplace legalisms that skulk in every
paragraph of listless legal writing:
Legalism Plain English
as to about, of, by, for, in
bring an action against sue
herein in this [agreement, etc.]
inasmuch as since, because
instant case here, this case
in the event that if
not less than at least
prior to before
pursuant to under, by, in accordance with
said (adj.) the, this, that
same (pron.) it, them
subsequent to after
such that, this, those, the
thereafter later
therein in it, in them, inside

While these and other legalisms might seem precise, they don’t really
lend precision to any legal discussion. They’re no more precise than the
ordinary words.
In the following example, the drafter’s fondness for said, same, and such
has produced an unnecessarily opaque tongue-twister:
The Undersigned hereby extends said lien on said property until said indebt-
edness and Loan Agreement/Note as so modified and extended has been
fully paid, and agrees that such modification shall in no manner affect or
impair said Loan Agreement/Note or the lien securing same and that said
lien shall not in any manner be waived, the purpose of this instrument being
simply to extend or modify the time or manner of payment of said Loan
Agreement Note and indebtedness and to carry forward the lien securing
same, which is hereby acknowledged by the Undersigned to be valid and
subsisting.

With a little effort—and by giving “the Undersigned” a name—it’s pos-

sible to boil that legal gibberish down to this:
Williams extends the lien until the Note, as modified, has been fully paid.
The modification does not affect any other terms of the Note or the lien,
both of which otherwise remain in force.

Lawyers recoil from this type of edit until they’ve gotten some experience.
But with experience comes the knowledge of how unnecessary much legal
claptrap is.
36 Part One. Principles for All Legal Writing

Acquire that knowledge ravenously, and you might be able to short-

circuit years of befuddlement.

Exercises
Basic
Translate the following passages into plain English:
● A prehearing conference was held on July 15, 2000, and the result of said conference
was that Rawson was given an extension of time until August 6 to respond to Vick-
er’s motion. Rawson subsequently failed to file any response thereto.
● In the event that any employee is requested to testify in any judicial or administra-
tive proceeding, said party will give the company prompt notice of such request in
order that the company may seek an appropriate protective order.
● The court asks whether the plaintiff is guilty of unreasonable delay in asserting its
rights. Such determination is committed to the trial court’s sound discretion. The
emphasis is on the reasonableness of the delay, not the length of such delay.
● Subsequent to the Bank’s dishonor and return of the forged check, the U.S. Attorney
served the aforementioned subpoena upon the Bank and directed the Bank to deliver
to his office forthwith, upon receipt, at any time and from time to time, any and all
bank checks, cashier’s checks, and similar items stolen in the robbery that tran-
spired on July 2, 2000.

Intermediate
Translate the following passages into plain English:
● All modifications, interlineations, additions, supplements, and/or changes to this
Contractual Amendment are subject to and conditioned upon a fully executed,
signed, and dated acceptance, approval, and confirmation at Pantheon’s corporate
headquarters.
● An interpreter is needed if, after examining a witness, the court arrives at the con-
clusion that the witness is without the ability to understand and speak English at
a sufficient level of proficiency to comprehend the proceedings in such a way as to
assist counsel in the conduct of the case.
● This letter shall confirm our understanding and agreement that if your loan applica-
tion on the above-described property is approved, you shall occupy the same as your
primary residence within thirty (30) days of the closing date. You are aware that if
you shall fail to do so, such failure shall constitute a default under the Note and
Security Instrument executed in connection with your loan, and upon occurrence
of such default the full and entire amount of the principal and interest payable pur-
suant to said Note shall become immediately due and payable at the option of the
holder thereof.
● Pursuant to the provisions of §§ 3670, 3671, and 3672 of the Internal Revenue Code
of the United States, notice is hereby given that there have been assessed under the
Internal Revenue Code of the United States, against the following-named taxpayer,
taxes (including interest and penalties) which after demand for payment thereof
remain unpaid, and that by virtue of the above-mentioned statutes the amount (or
amounts) of said taxes, together with penalties, interest, and costs that may accrue
in addition thereto, is (or are) a lien (or liens) in favor of the United States upon all
property and rights to property belonging to said taxpayer.

Advanced
Find a published piece of legal writing that is thick with legalese. Prepare a
short memo—no more than three pages—in which you (1) show at least
 § 13. Use strong, precise verbs 37

two paragraphs from the original, (2) show how you would edit the passage,
and (3) explain briefly why you made your edits. If possible, cite authority
(such as a usage guide—see § 48) in support of your edits.

or

In the literature on legal language and legal writing, find three quotable
paragraphs (each from a different writer) discussing legalese. Assemble the
quotations and citations. If you belong to a writing group or class, bring a
copy of your quotations for each colleague.

§ 13. Use strong, precise verbs. Minimize is, are, was, and were.
Despite a few notable exceptions—as in “I think, therefore I am” or “It
depends on what the meaning of is is”—be-verbs lack force. If they appear
frequently, the writing becomes inert. Yet legal writers often overindulge,
as in these passages:
● If there is information to which the company has reasonable access,
the designated witness is required to review it so that the witness is
prepared on all matters of question.
● Affecting vitally the problem of the burden of proof is the doctrine of

presumptions. A presumption occurs in legal terminology when the

fact-trier, whether a court or a jury, is required from the proof of one
fact to assume some other fact not directly testified to. A well-known
example is the presumption that a person is dead after seven years if
he or she has been shown to have been absent for seven years without
being heard from.

As you might gather, relying on is and its siblings can easily turn into a
habit. And wherever you find the various forms of the verb to be congre-
gating, you’re likely to find wordy, sluggish writing. We can recast each of
those passages with better, more picturesque verbs:
● If the company has reasonable access to information, the designated
witness must review it to prepare for all matters of questioning.
● The doctrine of presumptions vitally affects the burden-of-proof issue.

A presumption occurs in legal terminology when the fact-trier,

whether a court or a jury, must deduce from one fact yet another that
no one has testified about directly. For example, the law presumes that
a person has died if that person has been absent for seven years with-
out being heard from.

Although the English language actually has eight be-verbs—not only

is, are, was, and were, but also been, being, be, and am—this section
targets the big four. They’re the ones that you’ll need to focus on the most.
So mentally—or even physically—highlight every is, are, was, and were,
and see whether you can improve the sentence by removing it.
Many writers, by the way, erroneously believe that a be-verb always
signals passive voice. In fact, it’s only half of the passive-voice construc-
tion (see § 8). But even if be-verbs don’t always make sentences passive,
38 Part One. Principles for All Legal Writing

they can certainly weaken your prose. So they merit your critical at-
tention.

Exercises
Basic
Rewrite the following sentences to eliminate the be-verbs:
● Jones is in agreement with Smith.
● The professional fees in this project are entirely dependent upon the planning tech-
niques that the client is in favor of implementing.
● The judge is of the opinion that it is within sound judicial discretion to determine
whether, once the claim is asserted, the crime-fraud exception is applicable.
● Where there is no express agreement, it is ordinarily taken that the authority was
to last for what was a reasonable time in light of all the circumstances.

Intermediate
Rewrite the following passages to eliminate the be-verbs:
● There was no light-duty work that was available at the company. The company’s
actions were hardly discriminatory when there was no showing that the company
was practicing any type of discriminatory preference.
● Several members were in attendance, and those present were in agreement that the
board’s action was violative of the bylaws.
● This evidence is indicative that the company was desirous of creating a monopoly
with the operating system.
● Since there is a limited number of persons with the requisite skills, it is increasingly
difficult for the company to hire personnel who are qualified.

Advanced
In a piece of published legal writing, find two meaty paragraphs—consecu-
tive ones—in which be-verbs predominate. Type the paragraphs, preserve
an unedited version, and then revise them to reduce the number of be-verbs
by at least 75%. If you’re part of a writing group or class, bring a copy of the
before-and-after versions for each colleague.

§ 14. Turn -ion words into verbs when you can.

It’s not just passive voice (§ 8) and be-verbs (§ 13) that can sap the strength
of your sentences. So can abstract nouns. Avoid using words ending in
-ion to describe what people do. Write that someone has violated the law,
not that someone was in violation of the law; that something illustrates
something else, not that it provides an illustration of it; that a lawyer has
decided to represent the defendant, not that the lawyer has made the
decision to undertake the representation of the defendant; that one party
will indemnify the other, not that the party will furnish an indemnifica-
tion to the other.
In each of those alternatives, there’s the long way of saying it and there’s
the short way. The long way uses weak verbs and abstract nouns ending
in -ion. The short way uses a single forthright verb. Legal writing is full of
flabby wordings stemming from -ion words:
 § 14. Turn -ion words into verbs when you can 39

Wordy Better Wording

are in mitigation of mitigate
conduct an examination of examine
make accommodation for accommodate
make provision for provide for
provide a description of describe
submit an application apply
take into consideration consider

Of course, when you need to refer to mediation or negotiation as a

procedure, then you must say mediation or negotiation. But if a first draft
refers to the mediation of the claims by the parties, you might well con-
sider having the second draft refer to the parties’ mediating the claims.
Why concentrate on editing -ion words? Three reasons:
● You’ll generally eliminate prepositions in the process, especially of
(see § 15).
● You’ll often avoid inert be-verbs by replacing them with action verbs

(see § 13).
● You’ll humanize the text by saying who does what.

The underlying rationale in all this is concreteness. By uncovering buried

verbs, you make your writing much less abstract—it becomes much easier
for readers to visualize what you’re talking about.
If you still have doubts, compare that last sentence with this one: “After
the transformation of nominalizations, the text will have fewer abstrac-
tions; readers’ capability for visualization of the discussion is enhanced.”
Be alert to words ending in -ion. When you can, edit them out.

Exercises
Basic
Improve the following passages by changing all but one or two of the -ion
words. Do any -ion words need to stay?
● An interested party may make an application for a modification or revocation of an
antidumping order (or termination of a suspension agreement) in conjunction with
an annual administrative review. A revocation application will normally receive no
consideration by the board unless there have been no sales at less than fair value for
a period of at least three consecutive years.
● In analyzing the ADA claim, the court noted that the decedent’s termination and
the reduction in AIDS benefits by the company occurred before the ADA became
effective. Plaintiff nonetheless made the allegation that maintaining the limitation
on AIDS benefits beyond the effective date of the ADA—in effect discrimination
between plan members with AIDS and members without AIDS—constituted a vio-
lation of the general rule of Title I.
● The determination that reasonable grounds exist for the revocation of parole should
first be made by someone directly involved in the case. Yet we need make no as-
sumptions in arriving at the conclusion that this preliminary evaluation, and any
recommendations resulting therefrom, should be in the hands of someone not di-
rectly involved.
40 Part One. Principles for All Legal Writing

Intermediate
Edit the following sentences to reduce the number of words ending in -ion:
● In the event of termination of this Agreement by Sponsor before expiration of the
project period, Sponsor must pay all costs that the University has accrued as of the
date of termination.
● The federal district courts have discretion over supervision of the discovery process,
the imposition of sanctions for discovery violations, and evidentiary rulings.
● Although compliance with the terms of the Act should provide Hince some protec-
tion from state or local actions, the actual degree of protection remains uncertain
because of the absence of any prior judicial interpretation of the Act.
● Any violation of the terms of probation established by the Board will result in revo-
cation of VanTech’s authority to conduct itself as a public-utility operation.
● In addition, the imposition of punitive damages here would be a violation of the
constitutional provision containing the prohibition of ex post facto laws.

Advanced
Find a paragraph in published legal writing with at least three -ion words
that need editing. Retype the paragraph, with its citation, and then type
your own revised passage below it. If you’re a member of a writing group or
class, bring a copy of your page for each colleague, and be prepared to discuss
your work.
or
Research the literature on effective writing for additional support for elimi-
nating -ion words. What are the various terms that writing authorities use
for these words?

§ 15. Simplify wordy phrases. Watch out for of.

In working to shorten sentences, phrase by phrase, you’ll need to become
a stickler for editing out the usual suspects—the recurrent phrases that
bloat legal writing. Each one typically displaces a single everyday word:
Bloated Phrase Normal Expression
an adequate number of enough
a number of many, several
a sufficient number of enough
at the present time now
at the time when when
at this point in time now
during such time as while
during the course of during
for the reason that because
in the event that if
in the near future soon
is able to can
notwithstanding the fact that although
on a daily basis daily
on the ground that because
prior to before
subsequent to after
the majority of most
until such time as until
 § 15. Simplify wordy phrases 41

You’ll need to remember this list—and the reliable one-word translations.

More than that, though, you can strengthen your writing by cultivating
a skepticism for the one word in the English language that most com-
monly signals verbosity: of. Although this may sound simplistic, it ac-
tually works: focus on each of to see whether it’s propping up a wordy
construction. You might be surprised at how often it does that. When edit-
ing on a computer, try searching for “[space]of[space]” to see how many
ofs you can safely eliminate. Reducing the ofs by 50% or so can greatly
improve briskness and readability. With a little experience, you’ll find that
you carry out three or four predictable edits.
First, you’ll sometimes delete a prepositional phrase as verbiage:

Under New York corporate law, an action may be brought against one or
more officers or directors of a corporation to compel them to account for
their official actions if those actions resulted in the corporation’s losing
assets.

Although the edit may seem minor, deleting of a corporation helps

streamline the sentence. This edit—by which you brand the of-phrase
needless—is especially common in phrases such as the provisions of and
the terms and conditions of. Instead of writing that an agency’s actions
are “subject to the provisions of the 2000 legislation,” simply write that
they are “subject to the 2000 legislation.” Phrases like the provisions of
typically add nothing.
Second, you’ll sometimes change an of-phrase to a possessive form.
For example:

Profit-sharing was a means by which the employees were given a

company
lump-sum reward for the success of the company. ’s
.
That’s an easy edit. It also puts a punch word at the end of the sentence
(see § 11).
Third, you’ll sometimes replace a prepositional phrase with an adjec-
tive or adverb. For example:

The sale proceeds came predominantly from the Historical Society’s

collection of European paintings and decorative arts, the maintenance of

California
which contributed little to the study of the history. of California.

Although we might want to keep one of in the final phrase, we’ll need
to delete the other and use California as an adjective.
Finally, you’ll often just find a better wording. For example:

that he had no
The company advised Coleman of the lack of a factual or legal basis

for the lawsuit.

42 Part One. Principles for All Legal Writing

This edit is especially common with -ion words, as here:

Under New York law, any corporate act that is merely convenient for
to effectuate
the effectuation of the corporation’s purpose is now viewed as a power
that is subject to § 202.

Changing effectuation to effectuate immediately eliminates a preposi-

tion—and upgrades the style.
Selectively deleting ofs is surprisingly effective: even the most accom-
plished writer can benefit from it.

Exercises
Basic
Revise these sentences to minimize prepositions:
● Jenkins knew of the existence of the access port of the computer.
● This Court did not err in issuing its order of dismissal of the claims of Plaintiff.
● Courts have identified a number of factors as relevant to a determination of whether
the defendant’s use of another’s registered trademark is likely to cause a state of
confusion, mistake, or deception.
● One way in which a private party can act preemptively to protect the enforceability
of the rest of the provisions of a contract, in the face of one void provision, is to
insert a severability clause.
● Any waiver of any of the provisions of this Agreement by any party shall be binding
only if set forth in an instrument signed on behalf of that party.

Intermediate
Revise the following passages to minimize prepositions:
● Henry II had genius of a high order, which never manifested itself more clearly than
in his appreciation of the inevitability of the divergence of the paths of crime and
of tort, and in his conception of crimes as offenses against the whole community.
● The recognition of the propriety of a court’s overruling its own decisions places
those decisions on the plane of merely persuasive authority and causes our theory
of judicial precedent to be substantially like the theory held on the continent of
Europe.
● Penfold had no knowledge of the amount of money paid—and could not have had
knowledge of this—in advance of Penfold’s review of its financial position in 2000.
Thus, Penfold’s profit-sharing is neither deserving of nor subject to the protections
of Title III.
● In the case of R.E. Spriggs Co. v. Adolph Coors Co., 94 Cal. App. 3d 419 (Cal. Ct.
App. 1979), the Court of Appeal of California addressed the estoppel effect of a
cease-and-desist order. The court was of the view that the trial court erred in failing
to apply the doctrine of collateral estoppel, since the factual issue in dispute had
been litigated and decided in an earlier case involving the enforcement of an FTC
cease-and-desist order.
● One or both of the aspects of the function of the court must suffer. Either consider-
ation of the merits of the actual controversy must yield to the need of detailed
formulation of a precedent that will not embarrass future decision, or careful formu-
lation must give way to the demand for study of the merits of the case at hand.
 § 16. Avoid doublets and triplets 43

Advanced
Find a published passage in which you can improve the style by cutting the
ofs by at least half. Type the original, and then handwrite your edits so that
they’re easy to follow. If you’re part of a writing group or class, bring a copy
for each of your colleagues.

§ 16. Avoid doublets and triplets.

Legal writing is legendarily redundant, with time-honored phrases such
as these:
alienate, transfer, and convey (transfer suffices)
due and payable (due suffices)
give, devise, and bequeath (give suffices)
indemnify and hold harmless (indemnify suffices)
last will and testament (will suffices)

The list could easily be lengthened. Perhaps you’ve heard that these once
served a useful purpose in providing Latin and French and Anglo-Saxon
translations when legal language was not fully settled. This is largely an
inaccurate historical explanation.1 But even if it were accurate, it would
have little relevance to the modern lawyer.
The problem isn’t just that doublets and triplets, old though they may
be, aren’t legally required. They can actually lead to sloppy thinking. Be-
cause courts must give meaning to every word—reading nothing as mere
surplusage2 —lawyers shouldn’t lard their drafts with unnecessary words.
The idea isn’t to say something in as many ways as you can, but to say it
as well as you can.
To avoid needless repetition, apply this rule: if one word swallows the
meaning of other words, use that word alone. To put it scientifically, if one
term names a genus of which the other terms are merely species—and if
the genus word supplies the appropriate level of generality—then use the
genus word only. And if the two words are simply synonyms (convey and
transport), simply choose the one that fits best in your context.

Exercises
Basic
Edit the following sentences to eliminate the redundancies without chang-
ing the meaning:

§ 16 1. See Garner, A Dictionary of Modern Legal Usage 292–95 (2d ed. 1995).
2. See, e.g., Lowe v. SEC, 472 U.S. 181, 208 (1985) (“[W]e must give effect to every word that Congress
used in the statute.”); Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“[I]n construing a statute we
are obliged to give effect, if possible, to every word.”); Burdon Cent. Sugar-Ref. Co. v. Payne, 167 U.S.
127, 142 (1897) (“[T]he contract must be so construed as to give meaning to all its provisions, and . . .
that interpretation would be incorrect which would obliterate one portion of the contract in order to
enforce another part.”); FDIC v. Singh, 977 F.2d 18, 22 (1st Cir. 1992) (“[E]very word and phrase of an
instrument is if possible to be given meaning, and none is to be rejected as surplusage.”); Moncrief v.
Harvey, 816 P.2d 97, 114 (Wyo. 1991) (“All the parts of and every word in the contract should, if possible,
be given effect, avoiding a construction which renders a provision meaningless because the presumption
is that a particular provision is placed there for a purpose.”).
44 Part One. Principles for All Legal Writing

● Licensee will perform the work in compliance with all applicable laws, rules, stat-
utes, ordinances, and codes.
● While the witness’s truthfulness and veracity may be inquired into on cross-
examination, it cannot be further challenged by the introduction of extrinsic evi-
dence relating to matters not already in the record.
● If the bailee fails, refrains, or refuses to perform any obligation under this
agreement, the bailor may, at its option, perform the obligation of the bailee and
charge to, bill, or otherwise recover from the bailee the cost of this performance.
● Seller must cooperate with and assist Buyer in this process, without bearing the
costs or expenses associated therewith.

Intermediate
Find two examples of doublets or triplets in your apartment lease, mortgage,
car-loan agreement, or other personal contract. Suggest a revision that elim-
inates the redundancy without (in your opinion) changing the meaning. If
you’re part of a writing group or class, bring a copy of the before-and-after
versions for each colleague.
Advanced
In the literature on legal language, find at least three discussions of the
origin and modern use of doublets and triplets. Write a short essay (1,000
to 1,500 words) reporting your findings.

§ 17. Refer to people and companies by name.

Imagine a world in which all novelists used the terms “Protagonist” and
“Antagonist” as the names of their principal characters. Assume that play-
wrights and screenwriters did the same. The stories would grow tedious,
wouldn’t they?
Legal writers have traditionally spoiled their stories by calling people
“Plaintiff” and “Defendant,” “Appellant” and “Appellee,” or “Lessor” and
“Lessee.” It’s a noxious habit that violates the principles of good writing.
You can do better: call people McInerny or Walker or Zook. Or refer to
the bank or the company or the university. (If you want to—if you’re feel-
ing particularly nervous—you can capitalize them: the Bank, the Com-
pany, or the University. But see § 18.) Then make sure your story line
works. Do what you can, however, to avoid legal labels as party names.
Most people, you see, don’t think of themselves as intervenors, mort-
gagors, obligors, prosecutrixes, and the like. Even lawyers end up having
to backtrack and continually translate. You’re better off supplying the
translations in advance.
By the way, you’ll sometimes hear litigators say that it’s a good idea
to humanize your client (Johnson) while dehumanizing your adversary
(Defendant). This advice is almost always unsound: it simply makes your
writing halfway dull. And besides, if your adversary has done bad things,
the reader will readily associate those bad acts with a name (Pfeiffer) but
won’t with a legalistic label (Defendant).
Yet the preference for real names does have three limited exceptions:
(1) when you’re discussing a case other than the one you’re currently in-
volved in; (2) when the adversary is extremely sympathetic in comparison
with your client; and (3) when multiple parties are aligned in such a way
 § 18. Don’t habitually use parenthetical shorthand names 45

that a single name is inaccurate. Otherwise, though, use real names for
parties—even your opponents.

Exercises
Basic
Rewrite the following paragraph from a summary-judgment brief. Substi-
tute names for procedural labels. Assume that the movant (your client) is
Pine National and that the plaintiff is Peter Foster. You’ll undoubtedly see
the need for other edits, so improve the style as best you can.
Movant has conclusively established that Plaintiff did not initiate this lawsuit
against Movant until after the expiration of the applicable limitations period.
Plaintiff does not dispute this. Instead, Plaintiff seeks to avoid application of the
limitations bar by (1) asserting that this is a case of misnomer, in which case
limitations would be tolled, and (2) asserting that, under Enserch Corp. v. Parker,
794 S.W.2d 2, 4–5 (Tex. 1990), factual issues exist as to whether Movant was preju-
diced by the late filing. Yet the evidence before the Court establishes as a matter
of law that this is a case of misidentification (which does not toll limitations), not
one of misnomer. Further, Plaintiff has not responded with any proof of a basis
for tolling limitations under the equitable exception to the statute of limitations
described in Enserch. The exception is inapplicable under the facts before this
Court, and, therefore, prejudice or the lack thereof to Movant is not a relevant
inquiry. Plaintiff’s claims against Movant are barred by limitations as a matter
of law.

Intermediate
Find a legal document in which defined legal labels, such as mortgagor and
mortgagee, have caused the drafter to avoid pronouns, as a result of which
the style becomes embarrassingly repetitious. Rewrite a paragraph or two
of the example. If you’re part of a writing group or class, provide each col-
league with a copy of the example and the revision.

Advanced
Find some authority that supports (or contradicts) the idea that you should
refer to parties by name. Look at the literature on brief-writing and contract
drafting. If you’re part of a writing group or class, be prepared to discuss the
authority you’ve found.

§ 18. Don’t habitually use parenthetical shorthand names.

Use them only when you really need them.
Ever read a newspaper article that begins this way?
A powerful Russian industrialist named Mikhail Khodorkovsky (hereinafter
“the Industrialist” or “Khodorkovsky”), whose empire (hereinafter “the
Khodorkovsky Empire”) is under investigation in the money-laundering in-
quiry (hereinafter “the Inquiry”) at the Bank of New York (hereinafter “the
Bank”), said yesterday that a large part of the billions of dollars moved
through the Bank was controlled by Russian officials (hereinafter “the Offi-
cials”) who used the Khodorkovsky Empire to protect their fortunes by ship-
ping their money (hereinafter “Russian Capital”) abroad before Russian
markets collapsed last year (hereinafter “the Russian Collapse”).

Although that’s absurd—and no professional journalist would ever do it—

lawyers seem taken with the idea:
46 Part One. Principles for All Legal Writing

Gobel Mattingly (“Mattingly”), shareholder on behalf of Allied Ready Mix

Company, Incorporated (“Allied”) and Jefferson Equipment Company, Incor-
porated (“Jefferson”), has appealed from a nunc pro tunc order (the “Nunc
Pro Tunc Order”) of the Jefferson Circuit Court (the “Court Below”) in this
stockholder derivative action (“the Action”).

Even without hereinafters, that’s nonsense. There’s only one Mattingly,

one Allied, and one Jefferson involved. And if you tell the story compe-
tently, any reader will know what order and what action and what trial
court you’re talking about. As it is, the parentheticals impede compre-
hension.
So if you avoid the rote, mechanical use of parenthetical shorthand
names, when might you actually need them? Only when there’s a genuine
possibility of confusion, which typically arises in just two instances. First,
if you’re going to refer to the General Agreement on Tariffs and Trade as
GATT—something you may well do because the acronym is well estab-
lished (see § 19)—then you might want to do this:
Signed originally in 1948, the General Agreement on Tariffs and Trade
(“GATT”) promotes international trade by lowering import duties.

That way, the reader who encounters GATT won’t be momentarily con-
fused. Second, if you’re writing about a case with two or more entities
having confusingly similar names, a shorthand reference will dispel the
confusion:
Portland Credit Corporation (“Portland Credit”) has sued Portland Credit
Engineering Corporation (“PC Engineering”) for trademark infringement.

These situations do sometimes occur. But they aren’t the norm.

Exercises
Basic
Rewrite the following paragraph to eliminate the shorthand names:
The statement of the procedural history of this matter, as stated in the Appellant’s
brief, is essentially correct. The claimant, Keith W. Hillman (hereinafter “Hill-
man”), filed his claim for benefits from the Criminal Injuries Compensation Fund,
Va. Code §§ 19.2–368.1 et seq., on July 27, 2000. His claim was denied by the
Director of the Division of Crime Victims’ Compensation (hereinafter “the Direc-
tor”) on August 27, 2000 because his conduct contributed to the infliction of his
injury and because he had failed to cooperate with law enforcement. On Decem-
ber 20, 2000, Hillman requested a review of the denial of benefits. On April 8,
2001, Hillman was given an opportunity for an evidentiary hearing before a deputy
commissioner pursuant to Administrative Bulletin No. 25, attached hereto as Ad-
dendum A (hereinafter “Add. A”).

Intermediate
Find a judicial opinion in which the parties are methodically defined at the
outset. If you’re part of a writing group or class, bring a copy of the first two
pages. Be prepared to discuss whether you think the definitions serve any
real purpose.
 § 19. Shun newfangled acronyms 47

Advanced
Find a legal document in which the introduction of shorthand names seems
pedantic—or, worse still, absurd. Decide how you would deal with the issue
if you were the writer. If you belong to a writing group or class, be prepared
to discuss your findings and your proposed solutions.

§ 19. Shun newfangled acronyms.

Some acronyms are fine. Most people don’t hesitate over ATM cards, FAA
regulations, GM cars, IBM computers, or USDA-inspected beef. And vir-
tually all lawyers are familiar with acronyms such as ADA, DOJ, UCC,
and USC.
But specialists often glory in concocting an alphabet soup that only
their cohorts find edible. So you’ll occasionally encounter strange new
vocabularies from writers who haven’t learned how to write in plain En-
glish. These acronyms are shortcuts, all right—but for the writer, not the
reader. This, for example, is a word-for-word passage (only the names have
been changed) from a summary-judgment opposition actually filed by a
major law firm:

Plaintiff Valhalla Imports, Inc. (“VII”) is correct in pointing out that Maine
Casualty Corporation (“MCC”) was represented at the voluntary settlement
conference (“VSC”) by Matthew Tabak, a claims representative. Tabak at-
tended the VSC as MCC’s claims representative handling Grosse’s claim
against the Randall County Water District (“RCWD”), which was listed as
an additional insured under MCC’s insurance policy. MCC simply was not
involved in the worker’s compensation (“WC”) proceeding, had no responsi-
bility for that proceeding, nor any duty in regard to the settlement of that
proceeding, including the settlement of the serious and willful (“S&W”)
application. Rather, MCC’s involvement in the facts giving rise to the action
was limited to the following: MCC agreed to defend and indemnify (1) the
RCWD under the insurance policy against Grosse’s civil claims, and (2) VII
against RCWD’s cross-complaint. When Tabak contributed the aggregate
limit of the MCC policy at the VSC, MCC did all it could do or was required
to do to promote settlement.

Refuse to engage in that type of self-important obscurity. If you worry

enough about your reader’s convenience, you’ll translate ideas into ordi-
nary words that more readers—even more legal readers—can understand.
Instead of the example just quoted, you might write it up as a good journal-
ist would. Give the reader credit for having read the title of the opposition
(or any of the other court papers), which would show the full name of
Valhalla. You might write something like this:

Plaintiff Valhalla correctly points out that Maine Casualty was represented
at the voluntary settlement conference by Matthew Tabak, a claims repre-
sentative. Tabak attended the conference as the company’s claims represen-
tative. He was handling Grosse’s claim against the Randall County Water
District, which was listed as an additional insured on the Maine Casualty
policy. But the company was not involved in the worker’s-compensation pro-
48 Part One. Principles for All Legal Writing

ceeding, had no responsibility for that proceeding, and had no duties in any
of the settlement discussions in that proceeding. Rather, Maine Casualty’s
involvement was limited to the following: it agreed to defend and indemnify
(1) the Water District under the insurance policy against Grosse’s civil
claims, and (2) Valhalla against the Water District’s cross-complaint. When
Tabak contributed the aggregate limit of the insurance policy at the volun-
tary settlement conference, Maine Casualty did all it was required to do to
promote settlement.

When it comes to overused acronyms, environmental lawyers are

among the grossest offenders. In writings on environmental law, it’s com-
mon to see discussions in which small-quantity handlers of universal
wastes are defined as “SQHUW” (singular in form but plural in sense!),
large-quantity handlers are defined as “LQHUW” (again plural in sense),
and conditionally exempt small-quantity generators are defined as
“CESQGs” (plural in form and in sense). Then, before you know it, you’re
reading that “the requirements for SQHUW and CESQGs are similar” and
that “SQHUW and LQHUW are distinguished by the amount of on-site
waste accumulated at any one time.” Then, just as you’re about to master
these acronyms, you see references to “SQHUW handlers” and “LQHUW
handlers.” (The phrases are, of course, redundant.) Finally, when all these
acronyms get intermingled with references to statutes such as RCRA,
CERCLA, and FIFRA, you really do wonder what language you’re reading.

Exercises
Basic
In a law journal, find a passage that contains too many acronyms. Pick out
one paragraph, type it (with citation), copy it, and then revise it to minimize
the acronyms while you avoid repeating cumbersome phrases. If you’re part
of a writing group or class, bring a copy of your before-and-after versions for
each colleague.

Intermediate
In a book or article, find 10 to 20 acronyms. On a single page, present the
acronyms together with their meanings. If you’re part of a writing group or
class, bring a copy for each colleague and be prepared to discuss (1) the
extent to which you think the acronyms save time in communication
among specialists, (2) the extent to which you think they impede under-
standing for ordinary readers, and (3) the relative desirability and feasibility
of making the field more understandable to more people.

Advanced
In the literature on effective writing, find two sources that discuss the use
of acronyms. Distill their guidance and write a one-page report on your
findings. If you’re part of a writing group or class, bring a copy for each
colleague.

§ 20. Make everything you write speakable.

Whenever you write, whether you know it or not, you’re answering a
question: what do you sound like? You might be stuffy (many legal writers
 § 20. Make everything you write speakable 49

are), whiny, defensive, aloof, or chummy. You probably don’t want to be

any of those things.
Generally, the best approach in writing is to be relaxed and natural.
That bespeaks confidence. It shows that you’re comfortable with your
written voice.
It’s worth remembering, as the late Second Circuit Judge Jerome Frank
once put it, that the primary appeal of the language is to the ear.1 Good
writing is simply speech heightened and polished.
To the legal reader, few things are more pleasing than the sense that a
writer is talking directly to you—one intelligent being to another. It’s so
unusual that it can be genuinely refreshing. Consider the following ex-
ample. It’s the opener to a memorandum of law that Charles Dewey Cole
Jr., of New York, filed in federal court:
Defendants’ Response in Support of Denying Plaintiffs’ Late
Designation of Expert Witnesses
You wouldn’t know it from reading the plaintiffs’ objections, but what is
at stake is not the plaintiffs’ inability to depose the defendants (or even the
plaintiffs’ inability to depose them fully). What these objections are about—
and this is all that they are about—is the plaintiffs’ unexcused failure to
serve their expert-witness disclosure by the deadline: July 13, 1998. Because
the plaintiffs didn’t serve a medical report by then, the defendants assumed
that the plaintiffs were forgoing medical testimony, and they, in turn, de-
cided against having Walim Alibrandi examined by a physician.
The plaintiffs’ attorney must have assumed that, whatever injuries Mr.
Alibrandi received in the collision (and they were slight indeed), the cost
of a physical examination and of preparing a medical report simply wasn’t
justified—an understandable decision given a comparison of that cost with
the anticipated recovery. What the plaintiffs’ attorney did not anticipate was
that the defendants weren’t about to settle the case, and he found himself
in the unenviable position of having let the discovery deadline run without
having served a medical report. And he had no excuse.
Because the plaintiffs’ lawyer quite literally had no excuse for not serving
any medical expert-witness disclosure, he dressed up his application before
the magistrate judge to include all sorts of stuff about how the defendants
had impeded discovery so that he couldn’t take a whole bunch of unneces-
sary depositions. The magistrate judge recognized this for what it was and
concluded that the plaintiffs’ lawyer “had no excuse for his failure to have
served his own medical expert disclosure.” So she refused to reopen the
period for discovery at the October settlement conference.

The relaxed tone, achieved partly through contractions, shows confidence.

The point about contractions isn’t to use them whenever possible, but
rather whenever natural. Like pronouns, they make a document more
readable: “Write as You Talk is the accepted rule of writing readably—and
in English, the most conspicuous and handiest device of doing that is to
use contractions.”2 A 1989 study confirmed this: it found that frequent
§ 20 1. Jerome Frank, The Speech of Judges: A Dissenting Opinion, 6 Scribes J. Legal Writing 97, 99
(1996–1997), reprinted from 29 Va. L. Rev. 625 (1943).
2. Rudolf Flesch, The Art of Readable Writing 82 (1949).
50 Part One. Principles for All Legal Writing

contractions enhance readability.3 This advice applies not just to briefs

but also to contracts, rules, and other legal documents.
A word of caution: you might not be allowed to use contractions much
until you achieve a certain level of experience or seniority. This will de-
pend on your work situation. If you’re in a junior position, be patient.
What are the other characteristics of a natural, spoken style?
One is the use of first-person and second-person pronouns—especially
we and you—as opposed to third-party references such as resident or
mortgagor or vendee (see § 17). Readers are much more engaged by a text
that speaks to them directly. For example, the Air Force years ago began
to remedy the problem of unnatural, hard-to-understand language in its
directives. To translate a grievance procedure into plain English, the re-
viser used you instead of employee. One sentence originally read:
If the employee feels that an interview with the immediate supervisor
would be unsatisfactory, he or his representative may, in the first instance,
present his grievance to the next supervisor in line.

That sentence is much clearer with the personal word you:

If you feel that your supervisor will not handle your case fairly, you may go
directly to your supervisor’s supervisor.4

In sum, when you address readers directly, they more readily see how the
text applies to them.
Another point is to begin sentences with And, But, and So—especially
But. You do this in speech all the time. Good writers routinely do it in
print—nearly 10% of the time.5 But legal writers often lapse into stiffer
sentence openers like Similarly, However, Consequently, and Inasmuch
as. Try replacing these heavy connectors with faster, more conversational
ones.
Here’s a good test of naturalness: if you wouldn’t say it, then don’t write
it. You’ll give your writing much more credence if you come across as
sincere, honest, and genuine. Your words will be plainer, your style more
relaxed, and your prose more memorable. You should probably try reading
your prose aloud to see whether you’d actually say it the way you’ve writ-
ten it.

Exercises
Basic
Rewrite the following openers and closers from letters to make them
speakable:

3. Wayne A. Danielson & Dominic L. Lasorsa, A New Readability Formula Based on the Stylistic
Age of Novels, 33 J. Reading 194, 196 (1989).
4. See Arthur O. England, Getting Your Message Across by Plain Talk, 34 J. Applied Psychol. 182,
182 (1950).
5. Francis Christiansen, Notes Toward a New Rhetoric, 25 College English 9 (1963); see also Bryan A.
Garner, On Beginning Sentences with “But,” 3 Scribes J. Legal Writing 87 (1992).
 § 20. Make everything you write speakable 51

● Enclosed please find the following documents:

● Pursuant to your instructions, I met with Roger Smith today regarding the above-
referenced cause.
● Please be advised that the discovery cutoff in the above-referenced cause is Monday,
March 20, 2000.
● Pursuant to my conversation with Alex in your office on today’s date, I contacted
the trustee.
● This letter is for the purpose of retaining your services as a consultant regarding the
above-referenced matter.
● Thank you in advance for your courtesy and cooperation in this regard. Please do
not hesitate to contact me should you have any questions regarding this request.

Intermediate
In a law review, find a long sentence or a short to medium paragraph that
strikes you as particularly unspeakable. Type it, provide a citation, and set
out a bulleted list of reasons why you consider it difficult to read aloud. If
you belong to a writing group or class, bring a copy for each colleague.
Advanced
In a judicial opinion, find a two- or three-paragraph passage that strikes you
as being particularly unspeakable. Type it, provide a citation, and set out a
bulleted list of reasons why you consider it difficult to read aloud. Rewrite
the passage. If you belong to a writing group or class, bring a copy of your
before-and-after versions for each colleague.