>> Stating the Obvious

Stating the Obvious

By Judge Mark P. Painter

We lawyers have a talent for stating the obvious. We fill our documents with self-evident drivel. Not only does this take up space, but it’s part of the mind-numbing legal prose that too often clogs our writing.

The most common sentence in appellate briefs goes something like this: “Appellant has filed a timely appeal, and this case is now before this court for consideration.” Really? I wouldn’t have known that otherwise – maybe I’d have thought that the briefs materialized on my desk for no apparent reason.

One judge always put that sentence in opinions. Someone asked him once why he did it – and his reply was that, since the appellants usually lose, he wanted to throw them a bone. “Well, you lost. But you are such a good lawyer that you managed to file the appeal on time.” Surely, many lawyers took great solace from this sentence.

This is real. The names have been changed:

Procedural Posture:On October 7, 2002, the Bovine County Grand Jury indicted appellant, Quandre Boone, on one count of possession of crack cocaine in violation of R.C. 2925.11, one count of carrying a concealed weapon in violation of R.C. 2923.12, and one count of possession of marijuana in violation of R.C. 2925.11.

On December 3, 2002, appellant filed a motion to suppress, claiming an unreasonable stop and search. A hearing was held on December 23, 2003. By judgment entry filed December 27, 2002, the trial court denied said motion.

On January 3, 2003, appellant pled no contest to the charges. By judgment entry filed May 13, 2003, the trial court sentenced appellant to a total term of six months in prison.

Appellant filed a timely appeal, and this matter is now before this court for consideration.

(This is 134 words signifying little.)

This would have been sufficient:

Procedural Posture:

Boone was indicted for (1) possession of crack cocaine, (2) carrying a concealed weapon, and (3) possession of marijuana.

Boone moved to suppress evidence, claiming an unreasonable stop and search. The trial court denied the motion. Boone pleaded no contest to the charges and was sentenced to six months in prison.

(This is 51 words.)

The Fix:

You will have already identified the defendant-appellant in your opening statement of the case, so only the name is used.

  • “One count” is implied.

  • The statute numbers are irrelevant if only the search is contested. You can include them later if necessary.

  • Use moved, not filed a motion.

  • The dates are unimportant and distracting – never use an exact date unless it is important in the case.

  • Said is a banned word in this version.


Readability Statistics for this column (my text only): 3 words per sentence, 9 percent passive voice, grade level 8. (Remember the 1818 Rule – no more than an average of 18 words per sentence and 18 percent passive-voice sentences.)


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 10 years, after 13 years on the Hamilton County Municipal Court. He has served 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 May. It is available from http://books.lawyersweekly.com. Judge Painter has given dozens of seminars on legal writing and will give his six-hour legal writing seminar in December 2005 in Cincinnati, Cleveland, Columbus, and Toledo, Ohio. Contact him through his website, www.judgepainter.org.