| Reading briefs daily, and
examining pleadings and motions, I see
some good writing but many errors.
The most common appear so frequently
that even if I have mentioned them before,
they bear repeating. All the following are
"rules" in my book, The Legal
Writer: 40
Rules for the Art of Legal
Writing. Starting with the most common,
these are the biggest offenders.
Rule
13
Far the most common error is jumbling
up letters and numbers in the middle of
paragraphs. Putting citations in the body
of a motion or a brief destroys
readability. But many attorneys have
changed and their briefs have become
so much easier to read.
Rules
2 & 3
Missing from most briefs or motions is
context. The reader must know what the
case is about before slogging into it. Put
a short statement up front. In fewer than
75 words explain the situation, and what
you want the court to do about it. Samples
are in the book.
Rule
34
Commas and periods go inside quotes.
Always. No exceptions.
Quotation marks are used incorrectly in
so much legal
and non-legal
writing that it's an epidemic. The day
I wrote this column, four briefs in a row
had this glaring error throughout.
In American English, all commas and
periods go inside the quotation marks.
This is true whether the quotation is a
whole sentence or a fragment. In
Commonwealth English, the opposite is
true. So if you see a Canadian or British
or New Zealand quotation, the periods and
commas follow the same rule as the one
below for question marks and exclamation
points. But we are in America you must
get it right.
Colons and semicolons go outside
the end of a quote, even if the original
had a colon or a semicolon in that
position.
The only time you have to make a
decision where punctuation goes is when
you have a question mark or an explanation
point. These go inside the quote marks if
they are part of the quotation, outside if
they are not.
Notice that the short quotations above
may be introduced by either a colon or a
comma. Prefer the colon when both (1) it
introduces something more formal, or
something said in a formal atmosphere, and
(2) the source is identified before the
colon. If you do not want to have to
remember that suggestion (it is not a
rule), then you will not be wrong if you
always use a comma.
Rule
5
Avoid overchronicling most dates
are unimportant.
There is nothing wrong with stating the
facts in chronological order. Your initial
outline of the case should list all dates
because you don't know which events
might prove crucial. But you should know
by the time you are writing up the case
for a court.
Too many briefs recite a chronology of
facts: "On March 23, 2000, this
happened, and then on May 6, 2000, this
happened. Then on June 26, 2000, that
happened." This approach confuses
readers, because we don't know what facts
are important, and what, if any, dates we
should remember.
Using an exact date signals the reader
to remember that date it will be
referenced later. So unless an exact date
is important, leave it out. Instead, tell
us what the case is about only the
material facts, and why they are
important.
Say "in June" rather than
"on June 14, 2000," or worse,
"on or about" another
annoying lawyerism. If you have been
working on the case for years, you should
know when events happened.
Rule
6
Especially common and irritating is the
practice of spelling out numbers and then
attaching parenthetical numericals. This
is a habit learned when scribes used quill
pens to copy documents. It was to prevent
fraud, by making it difficult to alter
documents. But your word processor will
not confuse "five" with
"four."
A brief that states, "There are
four (4) plaintiffs and six (6)
defendants, all claiming the ten thousand
dollars ($10,000). But only three (3) of
the four (4) plaintiffs are entitled to
recover from one (1) defendant," is
extremely hard to read and looks silly.
Unless you are writing brief in longhand
and unless you believe the parties
will alter your numbers skip what
Bryan Garner calls a "noxious
habit."
There
Should Be A Rule
These are just the most common errors I
see every day. If you have another nominee
for the "rogues' gallery," send
it to me. And examples of good legal
writing are welcome too.
Self-Promotion
My newest book, William Howard Taft:
President & Chief Justice, is now
available. It's for ages 11 and up. A
companion book in the Ohio Presidents
Series is William Henry Harrison:
Father of the West, by Sue Ann Painter
(my wife). Both are available at
Joseph-Beth Booksellers in Cleveland and
Cincinnati, Ohio Barnes & Noble
stores, and the Ohio Book Store in
Cincinnati.
Readability
In each column, I list the two major
readability statistics remember that
you can program Word to tell you these and
more. Statistics for this column: 14 words
per sentence, 5 percent passive voice.
(Remember the 1818 Rule no more than
an average of 18 words per sentence and 18
percent passive-voice sentences.)
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WRONG
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RIGHT
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Williams believes that
"might makes right".
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Williams believes that
"might makes right."
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Smith said, "I am
not going", and stayed
seated.
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Smith said, "I am
not going," and stayed
seated.
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The author wrote:
"We cannot abide
consistency".
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The author wrote:
"We cannot abide
consistency."
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The court quotes
Shakespeare:
"To be or not
to be;" it then
overruled the
objection.
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The court quotes
Shakespeare:
"To be or not
to be"; it then
overruled the
objection.
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Smith said,
"Get
Help"! and
ran.
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Smith said,
"Get
Help!" and
ran.
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The judge
asked:
"Are
you ready
for
trial"?
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The judge
asked:
"Are
you ready
for
trial?"
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