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April 7, 2008

By Judge Mark P. Painter

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.

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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.