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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
By
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 this practice - 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. There are samples in my 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, I saw four briefs
in a row with 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 exclamation point. These go inside
the quote marks if they are part of the
quotation, outside if they are not.
Wrong:
Williams believes that "might makes
right".
Right:
Williams believes that "might makes
right."
Wrong:
Smith said, "I am not going", and
stayed seated.
Right:
Smith said, "I am not going," and
stayed seated.
Wrong:
The author wrote: "We cannot abide
consistency".
Right:
The author wrote: "We cannot abide
consistency."
Wrong:
The court quotes Shakespeare: "To be or not
to be;" it then overruled the
objection.
Right:
The court quotes Shakespeare: "To be or not
to be"; it then overruled the
objection.
Wrong:
Smith said, "Get Help"! and ran.
Right:
Smith said, "Get Help!" and ran.
Wrong:
The judge asked: "Are you ready for
trial"?
Right:
The judge asked: "Are you ready for
trial?"
Notice
that the short quotations above may be
introduced by either a colon or a comma. The
colon is preferable when (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 a brief in
longhand -and unless you believe the parties
will alter your numbers - skip what Bryan Garner
calls a "noxious habit."
Nominalizations
Are Not Nominal
Before
we became lawyers, we might have expressed our
opinion by saying "I think that …"
Now we say, "I am of the opinion that
…" What does it mean to be of an
opinion? We have turned a verb, think,
into a noun, opinion.
Or
instead of "Smith hit Jones," we write
"Jones was victimized in an assault by
Smith." The verb hit becomes the
noun assault. That is called
nominalization. It creates buried verbs.
Nominalization usually results in a
passive-voice sentence - a form of to be
(was in the Smith-Jones sentence) becomes
the verb.
But
sometimes this just adds a verb and obscures the
real verb. Instead of a straightforward
"The police searched Smith," we might
say, "The police performed a search upon
Smith." Is the performance what we
want to stress? Of course not; it's the search.
Searched is a fine verb - it conveys exactly
what happened. When we muck it up with a
performance, it is at least distracting - at
most misleading.
And
when we write "Smith filed a motion for
summary judgment," we really don't mean to
emphasize the filing. If we write
"Smith moved for summary judgment," it
makes much more sense and is shorter. Of course,
once in a great while, the filing itself gets
the emphasis, as in "Smith filed his motion
five days late." But not often.
Most
nominalizations end with -tion, -ment, -ence, -ance,
-ure, -ery.
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Verb
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Noun
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determine
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determination
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advance
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advancement
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modify
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modification
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improve
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improvement
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depend
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dependence
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divest
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divestiture
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agree
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agreement
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admit
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admittance
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depend
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dependence
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Nominalizations
not only add a noun-verb, they also add an
article. So you have two extra words, in
addition to taking the action out of the
sentence.
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Verb
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Noun
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moved
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filed a motion
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assumed
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made an assumption
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prefer
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have a preference
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reduces
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will result in a reduction
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violates
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is in violation
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reduce
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make a reduction
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Dr.
Terri Mester, an English professor at Case
Western, uses examples of nominalization in her
plain-writing seminars (which are worthwhile, as
are mine). My favorite sentence follows, with
the nominalizations and passives italicized.
"Although there are no new natural gas
areas that will be created, an enhancement
of land use through reduction in flooding
is obtained through the plan." How
about this: "The plan creates no new
natural gas areas, but reducing flooding
enhances land use." The active-voice
revision strikes out 12 useless words (46
percent of the sentence).
Here's
another of Dr. Mester's examples (used by
permission): "If there is a continuation of
this breach, my client will effect an immediate
termination of the contract." As revised:
"If this breach continues, my client will
terminate the contract." This version
eliminates eight superfluous words (44 percent)
and strengthens the sentence.
Nominalization
- strike it out. Hunt it down. Your reading
audience will thank you.
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: 13 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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