>> The Legal Writer #29: The Most Common Errors I See

The Legal Writer #29: The Most Common Errors I See

By Judge Mark P. Painter

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.


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.


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.)



Williams believes that “might makes right”. Williams believes that “might makes right.”
Smith said, “I am not going”, and stayed seated. Smith said, “I am not going,” and stayed seated.
The author wrote: “We cannot abide consistency”. The author wrote: “We cannot abide consistency.”
The court quotes Shakespeare: “To be or not to be;” it then overruled the objection. The court quotes Shakespeare: “To be or not to be”; it then overruled the objection.
Smith said, “Get Help”! and ran. Smith said, “Get Help!” and ran.
The judge asked: “Are you ready for trial”? The judge asked: “Are you ready for trial?”


Mark Painter is a judge on Ohio First District Court of Appeals and an Adjunct Professor at the University of Cincinnati College of Law. He is the author of five books, including The Legal Writer 2nd Ed.: 40 Rules for the Art of Legal Writing. The book is available at the Ohio Bookstore in Cincinnati, Joseph-Beth Booksellers in Cincinnati and Cleveland, the Book Loft in Columbus, and from Lawyers Weekly Books at http://books.lawyersweekly.com. Judge Painter has given more than three dozen seminars on legal writing. Contact him through his website at  www.judgepainter.org.