Judge Painter Returns from First United Nations Appeals Court Session. Judge Mark Painter of Cincinnati, the only American on the new United Nations Appeals Tribunal (UNAT) has returned April 2 from Geneva after the court’s first session ever.  Read more.

When the e-mail came from Naseem, asking me to come to Malaysia to talk about plain language, of course I was intrigued. Spreading the word about plain language legal writing has become a passion. And I would be one of three “world-class experts.”

There would be two seminars, one in Kuala Lumpur and one in Penang. The Malaysian government, specifically the Construction Industry Development Board (CIDB), was the sponsor, along with many other groups. Who could resist?

Though I knew where Malaysia is, I hadn’t been in that part of the world. But then, after a bit of Mapquesting, the reality dawned – it is a long way. As the crow flies, it’s 9,500 miles from Cincinnati (Compare: Tokyo 5,700; London 3,950; Moscow 5,050; Baghdad 6,500; Cape Town, 8,300.) The route we (my wife Sue Ann Painter braved the trip) flew was almost 10,500 miles. If you go much farther from Cincinnati, you start coming back. When we returned, we left from the Equator and flew over the polar ice cap – what’s left of it.

A missed day

We left Cincinnati on July 17 and arrived in Kuala Lumpur (everyone calls it KL) on July 19. We missed the 18th – I’m not sure where it went.

Thirty-two hours after our departure, and not as worse for wear as we expected, we arrived at the KL airport, which is new and impressive. We were fetched by a driver holding a name card with my name on it. That’s never happened before.

The KL airport is about an hour ride from town – it was the first place they could find enough flat land. The area around KL is what we would call “rolling,” with some mountains in the near distance.

A vibrant city of about 3,500,000 people, KL is the Malaysian capital.

The seminars

The construction industry is at the forefront of the plain language movement in Malaysia. At first that seemed strange – but who depends on contracts more? And most construction clients, architects, contractors, subcontractors, and managers have trouble with legalese – as does everyone else.

My contact was Sr Noushad Ali Naseem bin Ameer Ali, whom I met through a plain language international listserv. (The Sr is a designation equal to Dr. – it means surveyor – but not in the sense we would understand it. A surveyor is a value surveyor – someone who is a construction industry consultant. Naseem has degrees in architecture and construction management and is working on his PhD.)

Naseem asked four “world class” experts, only one of whom declined – because of the length of the trip. I came the farthest. The two others both came from Sydney, Australia –Peter Butt of the University of Sydney College of Law and Dr. Robert Eagleson, a retired English professor and head of the Victorian Law Reform Commission.

The local presenters were no less accomplished: a retired judge, a practicing lawyer who heads the committee to reform construction contracts, and Naseem, the driving force. (Click here to read the speakers’ bios.)

In KL we had a surprising turnout of more than 350 attendees: lawyers, architects, contractors, subcontractors, administrators, and government officials.

All the presentations were on plain language, with different emphasis. Prof. Butt gave his “myths” of legal drafting: the reasons why some people think “legalese” is better are all myths.

Dr. Eagleson gave examples of documents drafted in legalese, then converted to plain English. As usual, the difference was stunning.

Lawyer Tan Swee Im showed some of the “before” language of the standard construction contract, then the “after.” The committee she heads had been able to cut the number of words by 40%, while gaining, not losing meaning.

Sr. Naseem had a great video presentation on the benefits of plain language in a variety of situations.

At the end of both seminars, the audience was asked whether they wanted to stay with the old legalese or switch to plain language. For the latter, every hand went up.

About six weeks later, I received a thank-you letter from Sariah Abdul Karib, of the CIDB, with this language: “The conference has generated overwhelming support from the audience. … Following the conference, the Design and Build Form Construction Contract is now being redrafted in modern style.”

Now we just need to work on the U.S.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court. Judge Painter is the author of 370 nationally published decisions, 120 legal articles, and 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judgepainter.org

Sometimes, these cases almost write themselves. This was recently published as Starks v. Choice Hotels International.

MARK P. PAINTER, Presiding Judge.

Fortunately, this court has few frivolous cases. But we know one when we see one.

Plaintiff-appellant Thomas Starks appeals from the trial court’s judgment dismissing his complaint against defendants-appellees Choice Hotels International and Econo Lodge. We affirm.

Wrong stop

In May 2004, Starks was traveling through Kingston Springs, Tennessee. At 4:40 A.M., he decided to stop and rest. The Econo Lodge in Kingston Springs had a vacancy, though the owners now surely regret that circumstance. Starks stopped, checked into a $46 room, went to eat, took a shower, read the paper, and went to bed at about 7:30 A.M. But a phone call interrupted his slumber – he had missed the 11:00 A.M. checkout time. After unsuccessfully arguing with the motel manager that it was unfair to charge a full day’s rent for less than a day’s occupancy, Starks paid and left. This lawsuit followed, though we might ask how, why, and why here – as this county had nothing to do with these events, other than being Starks’s residence.

Starks sued Econo Lodge and Choice, seeking the return of his $46, damages of $750,000, free lodging for life (at the Econo Lodge!), and a class-action-type payment to all others similarly situated.

But Starks proceeded to sue the wrong people, in the wrong place, for a wrong wrong: (1) it wasn’t a wrong, (2) Hamilton County, Ohio, was not the right place, and (3) and even if there were a wrong, it wasn’t committed by these defendants.

The trial court dismissed Starks’s complaint on three grounds, any one of which would have been sufficient: lack of personal jurisdiction, improper venue, and failure to state a claim on which relief could be granted. These are questions of law and subject to our review.

Wrong people

Wayne and Katherine Collins run the Econo Lodge in Kingston Springs, under a franchise agreement with Choice. Though we assume Choice owns the trademark for the Econo Lodge, that is not clear from the record. Choice and Econo Lodge answered separately. Both asserted that they were not responsible for the franchisee’s acts. The franchisee, the operator of the business, was not made a party to this suit.

We first address Choice’s franchisor liability. Generally, a franchisor is not liable for the acts of its franchisee unless an agency relationship exists. The requisite relationship could have been established in this case if Choice had a vested right to control Econo Lodge’s actions. But under the franchise agreement, Choice had no right to control Econo Lodge, and the facts failed to show that Choice had ever attempted to exercise any control over Econo Lodge. Likewise, Choice’s affidavit averred that it did not own, operate, maintain, manage, possess, or control Econo Lodge, that no agency relationship existed between Choice and its franchisees, that neither Choice nor its franchisees had the authority to bind the other, and that Choice did not direct the manner or methods of the franchisee’s daily operations. And Starks failed to contradict this affidavit, or even to allege control in his complaint. Thus Choice was not a proper party.

Moreover, the trial court had no personal jurisdiction over Econo Lodge. For an Ohio court to have personal jurisdiction over a foreign corporation, the exercise of jurisdiction must be authorized under Ohio’s long-arm statute, and due process must be satisfied. When a court decides that jurisdiction is improper under Ohio’s long-arm statute, it need not address whether due-process requirements have been met. Ohio’s long-arm statute did not allow personal jurisdiction over Econo Lodge because it had no contacts here.

Wrong place

Even if Starks had sued the right people, he sued them in the wrong place. Proper venue lies in any one or more of the following counties: (1) the county in which the defendant resides; (2) the county in which the defendant has his or her principal place of business; (3) a county in which the defendant has conducted activity that gives rise to the claim for relief; (4) a county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property; (5) the county in which all or part of the claim for relief arises; (6) in actions under Ohio’s long-arm statute, the county where the plaintiff resides; (7) if there is no available forum, the county in which the plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity.

Both law and common sense compel us to hold that Hamilton County, Ohio, was not the proper venue for this case – Econo Lodge is a Tennessee corporation, none of the alleged wrongs happened here, and Econo Lodge had no contact with Ohio. And that conclusion is also applicable to Choice. Though other franchisees used the Econo Lodge name in Ohio, that fact, without more, was not enough to make Hamilton County an appropriate venue.

No wrong to right

Even if Starks had sued the right people in the right place, he had no case. A reasonable person knows there is a checkout time in a hotel or motel. The industry could not operate if everyone got exactly 24 hours of occupancy – when would the rooms be cleaned? A morning checkout time is standard. Perhaps Starks is nocturnal. “Some walk by night, some fly by day.” (Al Jarreau, Moonlighting Theme.) But most people are diurnal. The old concept of an inn was a place to stay the night. It is patently unreasonable that anyone would think there is not a checkout time. After the checkout time has passed, the guest becomes a trespasser.

Because Starks sued the wrong people, in the wrong place, alleging no wrong to right, there was no room in the judicial inn for Starks’s grievance. So we affirm the trial court’s judgment dismissing his complaint.

Frivolous appeal

This lawsuit and appeal are baseless. There was no reasonable cause for this appeal. And Starks has caused significant expense to the companies that had to respond.

Though we fear it may be a vain act, we sua sponte grant judgment for each appellee for $1,250. … Though the fees are undoubtedly more, we use the statute … so that no more time will be spent by counsel in preparing fee affidavits. But if counsel would like to submit those affidavits, we will certainly consider granting any reasonable fees.

Judgment affirmed.

HILDEBRANDT, J., concurs.

HENDON, J., concurs separately.

__________________

HENDON, J., concurring.

While the court system must remain open for the redress of a citizen’s perceived injustices, there is a point at which even the most liberal interpretation of personal rights fails in the light of common sense. This is one such case. The injustice done here was not to the plaintiff – it was by the plaintiff. To bring these defendants into the legal system for a wrong they did not commit, in a court foreign to their place of business, is a miscarriage of justice to the highest degree. I concur wholeheartedly in the award of available sanctions against the plaintiff.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court. Judge Painter is the author of 370 nationally published decisions, 120 legal articles, and 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judgepainter.org.

This is my 60th column on legal writing. The articles have covered a lot of ground.  But the fight goes on.

After attending my seminar in New Orleans, Louisiana workers’ compensation judge Elizabeth Warren sent me a filing, from which I extracted this gem of a paragraph. I’ve disguised it to protect the guilty.  It’s a response to a motion, so I’ll just call it a filing.

One sentence

“Should the Court determine that a hearing is necessary, the Government requests leave to supplement its’ filing with a factual chronology of the defendant’s own admissions of guilt in debriefings with the Federal Bureau of Investigation, the defendant’s uncorroborated allegations of wrongdoing by others, the defendant’s attempts to dissuade the government from prosecuting him through a series of threats relayed by him and others on his behalf about the damaging fallout that a prosecution against him would incur and the steps taken by the U.S. Attorney’s Office to insure that if and when such a motion was filed as the one pending, we would be able to pinpoint with certainty the steps taken to insure an independent analysis of any legal relevance [Defendant's] allegations had to this or any other prosecution undertaken by this office.”

Where to start?

The problems with this example are numerous:

• Never use Courier type. It is difficult to read and connotes a 1940 Underwood. One of many reasons is that Courier is a monospaced type, which makes justification problematic. Using Courier marks you as a rube.

• The sentence is 135 words long. The limit is 40, and average should be 18.

• The passage tests at the 57th grade, meaning that to understand it the first time, you must have completed 57 years of formal schooling. Do you know anyone who has been to the 57th grade?

• The readability score – on a 100-point scale – is 0.

• There is no such word as its’. The desired word is its. And it’s no typo – it’s used again later.

• The proper word is ensured, not insured.

Almost every conceivable error

Things get worse. The next page has this in the middle of a paragraph:

See United States v. Bolden, 353 F.3d 870, 875-876 (10th  Cir. 2003); see also In Re Harris County, Texas, 240 Fed. Appx. 644,645-646 (5th Cir. 2007).

This has even more problems:

• Instead of italics, the filing uses underlining. Underling is a signal to the typesetter (formerly an actual person) to use italics. We had to use underlining with typewriters, but now our word processors do italics quite nicely.

• The jumble of letters and numbers is in the body, making the paragraphs difficult to read.

• The punctuation of the cites is also messed up, but we won’t quibble about that.

This sentence shows another flaw:

The [Plaintiff] opposes this motion because the relief requested —disqualifying an entire government office—is not available.

The author evidently thinks that em dashes (—) and hyphens (-) are interchangeable. We can now easily do proper em dashes—we had to use two hyphens on typewriters. I assume this person was using a word processor. But even on a typewriter, just one hyphen for a dash was never acceptable.

Never use talking footnotes, as they are impossible to read. You should also avoid block quotes, because the reader will simply skip them.

Another bewildering paragraph

“Nonetheless, now obligated to respond to [Defendant's] shell of a vehicle giving expression to his unsupported vitriol against his accusers and victims, the [Plaintiff] also is compelled to indicate tersely that [Defendant's] related allegation of suppressed evidence is untrue.  Fortunately, [Defendant's] mendacity with the facts is as disprovable as his mendacity with the law. And the mendacity was predictable.  As soon as [Defendant] littered his own admissions of considerable fraudulent criminal activities in his practice as a lawyer with false and unsupported impugns of others – and sought specifically to connect his aspersions to other persons [Defendant] might think would invite the government to consider leniency for him, above all, to other pending and past public figure prosecutions – this Office, unknown to [Defendant], took precisely the safeguarding action [Defendant] wrongly guesses and contends with sinister implication did not occur.”

Here are the problems:

• This paragraph, with an average of 34 words per sentence, checks out at the 21st grade.

• The writer does start a sentence with an and, so he gets credit for that. But it’s not enough to save the paragraph, which has a readability of 9 on a 100-point scale.

• I’ve never seen “impugns” used as a noun.  And neither has the dictionary.

• Tersely seems misused.

• It too uses a hyphen for an em dash.

• The last sentence is 79 words and unfathomable.

As I’ve said before, when writing about bad legal writing, you are never at a loss for a bad example – advance sheets come every week. But this document had so many typical errors that it was a particularly fitting example.

Readability

I always show the readability levels for the column. They are (my writing only) 11 words per sentence, 5% passive voice, and grade level 6.7.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.

Geraldine Ferraro is one of those people who seemed to have disappeared from the political scene. She had her 15 minutes of fame in 1984 as the running mate of Presidential candidate Walter Mondale. So when she surfaced with a splash as a Hillary Clinton spokesperson, I noticed.

Being nonpolitical by law, I take no position on the political impact of the words she said about Barack Obama. But I do object to the glaring grammatical glitch.

Someone who ran for the second-highest office in America should speak correct English. Her quote:

“If Obama was a white man, he would not be in this position. And if he was a woman (of any color) he would not be in this position.  He happens to be very lucky to be who he is.”

Of course, each was should be were. It’s subjunctive.

The verbs should be were because they describe a condition contrary to fact—Obama is not white or a woman.

Should have been fixed

Newspapers used to change quotes to correct English, unless the bad English was part of understanding the quote or the person—Dizzy Dean might be used as an example here. He said Phil Rizzuto slud into third base. When someone criticized his using slud he said, “Slud is something more than slid. It means sliding with great effort.” Of course, he also opined, “Well what’s wrong with ain’t?”  (See more Dizzy quotes at http://www.baseball-almanac.com/quotes/quodean.shtml.)

There are two reasons for cleaning up quotes: 1) it’s not fair to quote bad grammar that might be okay in speech, but not in writing – the reader will think the speaker is an idiot; 2) perpetuating bad English in a newspaper might lead readers to think the error is the correct English. That’s unfortunate – the more we see bad English in print, the more it works its way into our minds as acceptable.

Subjunctive can make the difference

Subjunctive is not used nearly as much as it once was.

Now, the subjunctive is used to signal contrary-to-fact conditions, or suppositions. Historically, the subjunctive was used to convey any conditional thought, whether contrary to fact or not.  That usage is now archaic.

A wish is subjunctive, because wishing means that the thing wished for is not presently true. “I wish I was” is never correct. Phrases beginning with if often require the subjunctive verb, but only if they express something contrary to present fact. “If the court were [not was] made up differently …” But “If he goes [not go] ten miles, he will be in Stratford” is not subjunctive, because it simply states a conditional fact.

Why should lawyers care? Because just like leaving out a serial comma, the misuse of subjunctive mood can lead to ambiguity—and some court will construe your language against your intention.

Here are some examples where the subjunctive made a difference:

• “In Wong Wing, we hypothesized that detention ‘necessary to give effect’ to the removal of an alien ‘would be valid’; the use of the subjunctive mood makes plain that the issue was not before the Court.”  (Demore v. Hyung Joon Kim, 538 U.S. 510 (2003).)

• “Appellants argue that Clause 4(D) is ‘expressly subjunctive and contingent’ because preceded by the qualifying phrase ‘if applicable’.” (Royal Insurance Co. of America v. Orient Overseas Container Line Ltd., 514 F.3d 621 (2008).)

• “The phrase ‘had he lived’ in our wrongful death statute merely expresses in the subjunctive mood the contrary-to-fact situation that if the decedent had lived, which he did not, he could have brought a personal injury action for the death-causing injuries.”  (Nealis v. Baird, 996 P.2d 438 (Okla.).)

The best explanation of the subjunctive mood is in Garner’s Dictionary of Modern American Usage, though the discussion in the Dictionary of Modern Legal Usage—which you already have on your desk if you have heeded all my imperative (not indicative or subjunctive) entreaties in past columns—is also helpful.

Six uses

Garner explains that the subjunctive form survives in six contexts:

• Conditions contrary to fact: “If she were [not was] president,” or “If he were [not was] older, he could go to the dance,” or “If a wish were [not was] a horse, then a beggar would ride.” None of the facts are [not is] true—she is not president, he is not older, wishes are not horses.

• Suppositions: “Supposing I were [not was] president,” or “If I were [not was] to run for president, I might lose,” or “Even if there were [not was] only one size, it would not fit,” or “Were the situation reversed … ” or “Hypothetically, doctor, if the wound were (not was) properly sutured …”

• Wishes: “I wish I were [not was] president,” or “Would that I were [not was] rich.”

• Demands: “I insist that she go [not goes] to school.”

• Suggestions: “I propose that our profession commit [not commits] itself to plain language,” or “I suggest that judges be [not are] appointed on merit.”

• Statements of necessity: “It is necessary that he be [not is] trained,” or “It is imperative that the checks and balances be [not are] operating.”

Learn the subjunctive, before some court does it for you.

Readability

I always show the readability levels for the column. They are (my writing only) 16 words per sentence, 12% passive voice, and grade level 8.4.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.

Why write anything that the reader will almost surely skip?  We shouldn’t, but we do.

Judges and lawyers write long paragraphs. A long paragraph of text is daunting—if readers don’t see the end of the paragraph, or if they see it and it goes on forever —they will probably skip it and go onto the next one.

But we’ve been writing long paragraphs for a long time. When he was Chief Justice, William Howard Taft composed a paragraph that went on for ten (printed!) pages. One look at that and I would skip the whole case.

Make your paragraphs short – five to seven lines at most. Then readers will see the end.  If the end is in sight, the paragraph is not as daunting. Of course, the number of lines will depend on your page size and whether the format calls for columns. One tip: if your writing is to be published in columns (as this article will be) look at it in columns – you will be surprised how long a paragraph can be in a narrow-column format.

My paragraphs tend to be short. A paragraph is supposed to be one thought. I just make my thoughts small.

Avoid block quotes

When you find a case that supports your position, it is tempting to quote it at length.  After all, it is a court saying it, not you, the advocate.  Unfortunately, the gem of wisdom will go unread. No one reads long block quotes—they go in our mental “to read” file—we figure we’ll come back and read the block if necessary. But we don’t.

Let’s look at this example. The Ohio Supreme Court has written a decision almost exactly on point with your case. You want to use it. Many lawyers would do this.

The Ohio Supreme Court has held:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.  Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.  Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.  There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt.  There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

When this standard is applied to the facts in this case, it becomes clear from the plaintiff’s own description of the hospital’s behavior that the alleged harassment was nothing more than repeated attempts at helping him.

The problem with doing it that way is that the reader will skip to ‘When this standard is applied’ and not read the standard at all. You have gotten your point across zero times.

Also, quoting a court sometimes makes the reading treacherous. The two paragraphs quoted are poorly written, as is a lot of judicial prose. The grade level is 17.5, meaning you need 17.5 years of formal schooling (post graduate) to understand it on first reading.  That should cause the average member of the community to exclaim “Outrageous!”

Here’s the fix

You have to identify the court, and then take the best sentence from each of the paragraphs and first paraphrase it. Then put in the quote. That is, say it in your words, then the court’s words. And put it all in the text, not in a block.

The Ohio Supreme Court has set a high bar for recovery. Liability is imposed only where the conduct is so outrageous and extreme that it goes beyond all bounds of decency.  “Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ “

Liability does not extend to mere insults or annoyances. And the law should not intervene in every case where someone’s feelings are hurt. “There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”

Applying this standard, it is evident from the plaintiff’s own description of the hospital’s behavior that the alleged harassment was nothing more than repeated attempts at helping him.

Now you have gotten your point across four times, not zero. And even with the judicial quotes, the text now is at the 12th-grade level. And it’s 140 words, not the original 280—half.

Why is Elmore Leonard so successful?  “I leave out the parts that people skip.”

Readability

I always show the readability levels for the column. They are (my writing only) 14 words per sentence, 8 percent passive voice, and grade level 7.3.

____________________________________

Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.

We often run across confusing writing. And it’s not only legal writing—there is plenty of mediocre writing out there.  Recently I saw two sentences in a local “newspaper” that cried out for improvement.

The county is taking soil samples needed in order for it to finish its design of the county-built parking garage, which will serve as the platform to raise the rest of the development out of the flood plain.

This sentence of 38 words tested at grade level 15.7, with a readability score of 50.3 (on a 100-point scale). Spellcheck will give you these figures.

Surely it could be improved. The sentence is much too long. Here’s my first try:

The county is taking soil samples needed in order for it to finish its design of the county-built parking garage, which will serve as the platform to raise the rest of the development out of the flood plain.

Or this:

The county is taking soil samples needed to finish its design of the county-built parking garage, which will raise the rest of the development out of the flood plain.

You can always delete “in order.” With nine words subtracted, the scores are 12.8 and 54.9—an improvement, but 12th grade is too high for a general newspaper. Remember, only 17 percent of Americans read at 12th-grade level or above. So we have to do better. Since sentence length is the first component of readability, let’s split the sentence.

The county is taking soil samples needed to finish its design of the county-built parking garage. The garage will raise the rest of the development out of the flood plain.

Now we are at grade 7.6, a democratic number, and 67.5, which is acceptable. Here’s the next sentence:

Once the garage is built, the developers will begin building the first phase of the Banks, a proposed neighborhood with housing, office, retail/entertainment and a park located between the Great American Ball Park and Paul Brown Stadium.

This sentence is even worse than the first, scoring a grade level of 18.3:  doctoral! The readability score is 29.8. Of course the sentence is too long – 37 words. And the writer is trying to cram too much information in one sentence. And why the slash?  Avoid slashes. Here’s the first try:

Once the garage is built, the developers will begin building the first phase of the Banks. The Banks—to be built between the Great American Ball Park and Paul Brown Stadium—is a proposed neighborhood with housing, office, retail, entertainment, and recreation components.

Making two sentences helps, now it’s at grade 11.5—almost high-school graduate rather than college—but it still needs work. Here are two versions:

Once the garage is built, the developers will begin the first phase of the Banks. The Banks is a proposed neighborhood with housing, office, retail, entertainment, and recreation components. It will be built between the Great American Ball Park and Paul Brown Stadium.

Or

The Banks is a proposed neighborhood with housing, office, retail, entertainment, and recreation components. It will be built between the Great American Ball Park and Paul Brown Stadium. Once the garage is built, the developers will begin the first phase.

Both are grade 8.5 and about level 60 readability.  I think the second one fits the article better.

It’s not too difficult to fix writing. It just takes time, and we don’t always have that luxury. So we need to form good writing habits. Get it right in your first draft by using shorter sentences, fewer passive sentences, and ordinary words.

Readability

I usually show the readability scores for the column.  But they are all in the article this time.

____________________________________

Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.

My last column stressed the importance of gender-neutral language and set out a number of ways to fix it.

I said that, depending on the specific sentence, gender-specific language can be fixed by (1) omitting the pronoun, (2) substituting an article, (3) substituting the second person, or (4) changing to plural.

The genesis of the problem is that the English language has no singular gender-neutral personal pronouns. We have he and she but not a singular gender-neutral pronoun. Or do we?

This question is related to the gender question, because it avoids the gender-specific his or hers, or worse, his or her, which isn’t specific, just clumsy.

Of course, the problem only arises when we refer to people of mixed genders, or we don’t know the genders: if everyone is male or female, we use that gender pronoun. Everyone on the Patriots has his assignment. Everyone on the Lady Bearcats team knows her position.

Everyone may use they in their writing

Several readers have asked about—most bemoaned—the singular they, as in everyone has their job.

No bemoaning is necessary. Though I know I will get e-mails from people whose grammar teacher also believed superstitions such as not ending a sentence with a preposition, my position is that the singular they or their or them is acceptable, even preferable.

The singular they is as English as Shakespeare or Henry Fielding:

“God send every one their heart’s desire!”

Much Ado About Nothing, Act III, Scene 4

“There’s not a man I meet but doth salute me,

As if I were their well-acquainted friend.”

Comedy of Errors, Act IV, Scene 3

“Every Body fell a laughing, as how could they help it.”

Tom Jones (Everybody was still two words, though, and capital letters abounded.)

Or Jane Austin or Oscar Wilde:

“Every body was punctual, every body in their best looks: not a tear, and hardly a long face to be seen.”

Emma

“Experience is the name everyone gives to their mistakes.”

Lady Windermere’s Fan

You can see this website for many more examples: http://www.pemberley.com/janeinfo/sgtheirl.html. Thanks to Steve Pemberton for his collection.

And there is a huge list of quotes from the King James Bible here: http://englishbibles.blogspot.com/2006/09/singular-they-in-english-bibles.html.

The singular they was fine then. And it is fine now. Bryan Garner, the guru of all American language, opines that the singular they will ultimately totally displace the singular his or his and hers. It nearly has already. And we should welcome the change.

And are we really sure that all of the above examples are even singular? Everyone surely means more than one person—it’s the one that threw grammarprissies for a loop. No one is sometimes plural and sometimes singular, but mostly plural.

So don’t hesitate to write “Everyone has their (not his) opinion,” or “If someone wants to know, they will find out.”

Readability

I usually show the readability scores for the column. Statistics for this column (my writing only): 15 words per sentence, 10 percent passive voice, and grade level 8.5.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 13 years, after 13 years on the Hamilton County Municipal Court.  Judge Painter is the author of 365 nationally published decisions, 120 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available at http://store.cincybooks.com.  Judge Painter has given dozens of seminars on legal writing.  Contact him through his website, www.judgepainter.org.

Of course, gender matters in a lot of contexts – but here we will talk about writing. The English language has no singular gender-neutral personal pronouns, which creates problems.

Years ago, everyone used he and him generically. These pronouns were said to encompass everyone. But they don’t – they leave out half or more of the audience.

Though it’s important to refrain from gender-specific language, it’s also important not to seem as if you are trying too hard. I have seen articles where the author uses she and her for the first half, then switches to he and him midway. That’s jarring. And annoying.

Just as bad is s/he or using his or hers repeatedly. So what to do?

Let’s look at these examples:

A good lawyer must effectively communicate with his clients.

Here are two suggestions for a fix:

• Good lawyers must effectively communicate with their clients.
• A good lawyer must effectively communicate with clients.

Another example:

• A defendant should not be forced to sacrifice his or her constitutional right to a fair trial solely because of her status as a celebrity.

Two suggestions for a fix:

• A defendant should not be forced to sacrifice the constitutional right to a fair trial because of celebrity status.
• Defendants should not be forced to sacrifice their constitutional rights because of celebrity status.

Example:

• He who prepares more thoroughly for a trial has a better chance of winning.

Fix:

• One who prepares more thoroughly for a trial has a better chance of winning.

• Preparing more thoroughly for trial increases your chance of winning.

(While one is undoubtedly correct, it may seem stuffy to Americans. A good rule: If you can get away with wearing an ascot, you may use one.)

Example:

• A good lawyer takes her job very seriously.

Fix:

• A good lawyer takes the job seriously.

• Good lawyers take their job seriously.

(The very doesn’t add anything, so it was cut.)

All the “fixes” turn out better than the original, and they don’t raise the reader’s suspicion that you are trying too hard to be gender neutral. Any time the reader has to pause and think about your style of writing, rather than about what you are trying to communicate, you lose the reader’s attention to your point.

Gender-specific language can be fixed by (1) omitting the pronoun; (2) substituting an article; (3) substituting the second person – you, your – when appropriate; or (4) changing to plural. Not all fixes work for every instance, but plural will almost always work.

Another easy fix is to use the gender-neutral form of many words: chair not chairman, or worse chairperson; police officer rather than policeman; firefighter rather than fireman. I think we have mostly mastered these, but the old forms still crop up occasionally.

I usually show the readability scores for the column. Statistics for this column: 15 words per sentence, 10% passive voice, and grade level 8.5.

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Mark Painter has served as a judge on the Ohio First District Court of Appeals for 12 years, after 13 years on the Hamilton County Municipal Court. Judge Painter is the author of 360 nationally published decisions, 115 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judgepainter.org.

E-mail is a wonderful tool. We have instant global communication. Although e-mail was invented in 1971, it didn’t become universal until about 15 years ago. Wow! I remember when I was with a big firm, every big firm had a cable address on its letterhead: Cable: Smithlaw. Being curious, I asked everyone I met in the firm if they had ever sent or received a cable. I never found one.

Cables were the very wrapped wire that ran under the ocean. They were also the conduit for international telephone calls. But cable messages were written, so they could be used as evidence. Phone calls, unless recorded (always legally suspect), were not as useful in proving communication.

Younger people don’t remember when long-distance phone calls were outrageously expensive. Of course, it was a monopoly – Ma Bell charged whatever the regulators would allow. Competition – and technology – have made calling LA from Cincinnati the same as calling locally.

E-mails, once the service is paid for, are free – and instantaneous. But with all new technology, new pitfalls arise. These are just a few hints for making e-mail more useful.

* Always do a re: tell people what’s coming

Using a reference helps others categorize the message’s priority – or its lack. “Next year’s picnic” or “Emergency system shutdown” are different, and the reader will thank you for helping prioritize.

Be specific: If you have different projects going with the same person, be sure to identify the exact category; “your project” or “your e-mail” doesn’t help much. Use a specific reference such as “Your bid on the Ames project.” Then when people search their e-mail, they can easily find the one they are looking for.

* Use real – and plain – English

The language has been dumbed down enough. You isn’t u, and are isn’t r. People weren’t crass enough to use these even with telegrams (anyone remember them?) – when they were paying by the word.

As with all writing, be as brief as possible without losing meaning. But do it with proper grammar and complete sentences.

As lawyers, we know that e-mails are now likely to show up as evidence in lawsuits – bad enough without the embarrassment of poor grammar.

* Always have Spellcheck running

All e-mail programs I know of allow you to set the Spellcheck to automatically check before you send. Make sure it’s on. As with Spellcheck in general, don’t follow it blindly. But it will save you from obvious typos.

* The U.S. Mail still exists

Weeks go by when I do not receive an actual first-class letter, except for bills. We should all remember that an actual letter, on good stationery, with a real stamp, can get someone’s attention. And it’s nostalgic to get one.

* Do you really need a disclaimer on the bottom?

Maybe it makes sense to have the “if you are not the intended recipient” language, but I’m skeptical. Here’s the one our county uses (I’ve tried to have it deleted from mine without success):

This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain private, confidential and/or privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, employee or agent responsible for delivering this message, please contact the sender by reply e-mail and destroy all copies of the original e-mail message.

Not especially good grammar, but does it really work?

An Internet site I found recommends this disclaimer:

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

WARNING: Computer viruses can be transmitted via e-mail. The recipient should check this e-mail and any attachments for the presence of viruses. The company accepts no liability for any damage caused by any virus transmitted by this e-mail. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission.

No employee or agent is authorized to conclude any binding agreement on behalf of [Company] with another party by email without express written confirmation by [Supervisor or Director].

Our company accepts no liability for the content of this e-mail, or for the consequences of any actions taken on the basis of the information provided, unless that information is subsequently confirmed in writing.

Any views or opinions presented in this e-mail are solely those of the author and do not necessarily represent those of the company. Employees of [Company] are expressly required not to make defamatory statements and not to infringe or authorize any infringement of copyright or any other legal right by e-mail communications. Any such communication is contrary to company policy and outside the scope of the employment of the individual concerned. The company will not accept any liability in respect of such communication, and the employee responsible will be personally liable for any damages or other liability arising.

See www.emaildisclaimers.com.

But if I can’t rely on anything in the e-mail, why send it?

How about this:

“If I sent this to you by mistake, you probably have no interest in the secrets. It would be really nice if you hit “reply” and told me I screwed up, so I could then send the secrets to the person I intended. Then please delete this, as if you wouldn’t anyway. Probably you already deleted it and aren’t reading this.”

This last one was on a website and attributed to one John Sullivan. I tried to locate the particular John Sullivan without success. The site is http://www.goldmark.org/jeff/stupid-disclaimers/fun.html

By sending an e-mail to any of my addresses you are agreeing that:

* I am by definition, “the intended recipient.”

* All information in the e-mail is mine to do with as I see fit and make such financial profit, political mileage, or good joke as it lends itself to.

* I may take the contents as representing the views of your company.

* This overrides any disclaimer or statement of confidentiality that may be included on your message.

____________________________________

Mark Painter has served as a judge on the Ohio First District Court of Appeals for 12 years, after 13 years on the Hamilton County Municipal Court. Judge Painter is the author of 360 nationally published decisions, 115 legal articles, and six books, including The Legal Writer: 40 Rules for the Art of Legal Writing, which is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judgepainter.org.