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April/May 2006 Issue | Volume 32 Number 3 | Page 60
Business

Writing Clear and Effective Legal Prose

Lesson One: Where's the Beef?

By Geroge D. Gopen

Perhaps no single skill is more important to the practice of law than a conscious, masterful control of the English language. In this first installment in his series on the topic, an expert explains how to use reader expectations to make clear what is happening in your sentences.

Much of the time-honored advice about how to write well turns out to be wrong:

  • To make it better, make it shorter. Wrong .
  • Avoid the passive. Wrong .
  • Write the way you speak. Wrong .
  • To see if your writing is good, read it aloud. Wrong .

None of these well-intended pieces of advice will produce clarity, which comes not from the number of words, the mode of the verbs, or the lilt of the prose rhythms. Clarity comes from knowing how the structure of prose influences how readers go about the reading process.

This is the new news about the English language: Readers take the great majority of their clues for making sense out of prose not from word choice but rather from structure—from where in a sentence the words appear. Readers lean forward to those places, expecting to find there the answers to necessary questions. To understand what a writer is intending to say, a reader must have (correctly) answered five crucial questions by the end of each sentence:

  1. What is going on here?
  2. Whose story is this?
  3. How does this sentence link backward to the one I’ve just finished reading?
  4. How does this sentence lean forward to where I may be going from here?
  5. What is the most important information in this sentence—the words I should be reading with the greatest emphasis?

Readers try to answer all five of these questions by looking for the relevant information in particular places in the sentence. Readers do this intuitively, unconsciously. If we as writers can consciously become aware of these “reader expectations,” then we can manipulate the structure of our sentences to make most readers agree on what our prose is intended to mean.

How do we signal to readers where to look for what? To illustrate, here is an example I have used with hundreds of groups of lawyers and students to investigate the first of the five questions—how readers discover what action is going on in an English sentence.

Deciphering Intent: Ear versus Eye

Compare the following sentences:

A. What would be the employee reception accorded the introduction of such a proposal?

B. How would the employees receive such a proposal?

Whenever I present these two sentences, almost everyone agrees that sentence B is easier to read than sentence A. When I ask why, they suggest two causes: B is shorter than A; and B has an active verb, while A is written in the passive. Neither of those turns out to be significant.

Sentence A is only 13 words long. Surely we should not have to shorten every 13-word sentence to 8 words to make it intelligible.

Active versus passive? This is one of the most misconceived problems in the teaching of our language. The passive is not a bad thing, to be avoided at all costs. In fact, without the passive, we would be unable to write high-level, clearly communicative, persuasive prose. The trick is knowing when to use the passive—a topic for another day.

What then is the cause of the easier readability of sentence B? To unravel this mystery, I ask my writing students and clients to underline the word or words in A that indicate actions going on in that sentence. (Do it yourself, to get a better sense of this process.) It takes people a while to do this. I then ask them to tell me how many words they underlined. In a room of 20 people, participants will underline anywhere from zero to six words. Then I find that the people who underlined three words disagree with each other as to which three words should be underlined—and the same for the two-word people, and the one-word people. Thus, in a room of 20 people, there are often 12 to 15 different answers to what seemed at first a very simple question.

Next I ask them to do the same task for sentence B. (Try it.) In a fraction of the time it took them to select their words for sentence A, about 15 people will underline one and the same word—“receive.”

Why do most people agree that “receive” is the action in sentence B, but there is no agreement at all on what is going on in sentence A? It is because of our reader expectation: Readers of present-day English expect that the action of a sentence will be announced by its verb. We lean forward to the verb to learn what is going on. If that word gives us what seems a good answer to our question, we tend to accept it. If it does not, we are on our own to try to find that answer elsewhere. That is why there is such disagreement about the action in sentence A.

Some people will underline “would be,” because it is two-thirds of the verb (along with “accorded”). Only the sentence’s author knows for sure what action was intended. When I asked her if “would be” was an intended action, she said it was not. All those who underlined it are already out of the game: They did not get what she was trying to say.

About 50 percent tend to underline “reception.” Yes, the author tells me: She intended “reception” to be an action. Since it was a noun, not a verb, only about 50 percent found it.

Usually 65 to 80 percent underline “accorded.” No, the author tells me: “Accorded” was not an intended action. Why then do so many people underline it? Because not only is it part of the verb—and its most impressive-looking part—but we have been anxiously waiting for it to arrive ever since we finished reading “would be.” We want “accorded” to be the action—because it is the interesting part of the verb. Thus, 65 to 80 percent of readers have no chance of understanding what she meant by this sentence.

When the author looked at sentence B, which is my revision of her sentence, she disapproved of it altogether. I had missed her meaning because I had left out the whole idea of “introduction.” I had thought it an unnecessary word, for the employees could not have received a proposal that had not yet been introduced. But the author informed me that she had intended two actions in her sentence: “reception” and “introduction.” I was mystified. I knew then that I did not know what she meant by her sentence; but still, as her writing consultant, I could tell her how to write it better. If “reception” and “introduction” were her actions, she should make them verbs—“receive” and “introduce.” Then the subjects of these new verbs would be the people who are performing those actions. In no time, she produced this third, straightforward version:

C. How would the employees receive such a proposal if the executive board introduced it at this time?

In writing sentence B, I had gotten only the first half of her meaning. It was the timing of the introduction she was interested in. Now that we know this intent, can we reread sentence A and find that meaning there? Sure. If she were to read it aloud to us, the author would probably emphasize it like this:

What would be the employee reception accorded the INTRODUCTION of such a proposal?

Most readers tend to read it differently—waiting for the verb to tell us what is going on:

What would be the employee reception accorded the introduction of such a proposal?

Strangely then, although B is easier to read than A, it is a worse sentence, given what she was trying to say. The ear is a bad judge of prose. The eye and the mind do better. Sentence B sounds better. It isn’t.

Structure Signals Substance

Despite what we were taught in high school, there are no verbs that are weak or strong all by themselves. It depends entirely on the sentence in which they exist. “Is” is a strong verb if the sentence is talking about the things “is” is capable of doing—stating existence or equality of characteristics. (“The world is in a deplorable mess.”) “Accorded” is a weak verb in a sentence, such as sentence A, in which no one is doing any according.

To let your reader know what is going on in each of your sentences, make sure the verb is the word that announces what is happening. Then most of your readers will discover that action. If you put it elsewhere than the verb, substantially fewer of your readers will find it.

This particular reader expectation is by no means the most important one, but rather the easiest one to present as a first example. In the next issue, I will demonstrate the most crucial one—how to get your readers to agree on what information in your sentence you want them most to emphasize.

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