>> But really: good v. bad writing

But really: good v. bad writing

By Judge Mark P. Painter

We all now know that using but and and to begin (some) sentences is the mark of good writing (Rule 18). Always use but to begin a sentence instead of the more difficult however. Examples abound – just pick any author you believe is good and look. But I always like new ones.

Reader Thomas Irvin, a law student at Case-Western, sent this one: But in a larger sense, we cannot dedicate – we cannot consecrate – we cannot hallow – this ground. Can’t get much better than that.

Irwin also sent a great example of why we need to hyphenate compound adjectives such as common-law rule, public-policy exception, and the like (Rule 22). In a criminal-law textbook, he found this gem: Indigent defendants are entitled to court appointed attorneys. But if they are broke, it wouldn’t be much of a date. They are entitled to court-appointed attorneys, not to court their appointed attorneys.

English to Latin to French

In previous columns, and in one decision (Kohlbrand v. Ranieri, 159 Ohio App.3d 140, 823 N.E.2d 76), I’ve talked about the use of two words for one – free and clear, null and void, and the like – which resulted from lawyers’ trying to make writing intelligible to both French-speaking and English-speaking people in England after the Norman Conquest.

But Latin snuck in there also. Partly this was because “educated” people knew Latin, and partly because English was disfavored after the Conquest. The Normans were French, so they continued to speak that language after the Conquest – and they were the rulers, the elite. Additionally they were accustomed to writing in Latin, so they used that frequently in place of English.

Gradually, French became the language of the law. But some English, and much Latin, stayed. That’s how we get rest (English), residue (Latin), and remainder (French). Have you ever had a client come into your office and say, “I want the rest of my estate to go to my spouse, the residue to my daughter, and the remainder to my son?” Are they three things? Of course not; they are one thing described by three words. Any attempt to distinguish different meanings from the couplets and triplets should be met with the unassailable argument that they mean, and always were meant to mean, the exact same thing. And considering it’s been more than 700+ years since any possible utility in has evaporated, we should stop using them. Now.

The French influence also gave us lessor/lessee, vendor/vendee and the like. Because of French word order, we have backwards word pairs such as attorney general, accounts payable, letters testamentary and court marshal.

For a fascinating (at least to me) explanation of some of how we got into the mess of bad legal writing, I suggest reading Peter Tiersma’s Legal Language (Chicago, 1999).


I always show the readability scores for the column (Rule 16-17). Statistics for this column: 16 words per sentence, 6% passive voice, and grade level 9.3.


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 11 years, after 13 years on the Hamilton County Municipal Court. He has taught as an Adjunct Professor at the University of Cincinnati College of Law since 1990. Judge Painter is the author of five books, including The Legal Writer: 40 Rules for the Art of Legal Writing. The third edition of that book was published in 2005. The rules cited in this column are from that book, and it 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.