On the Papers: A New Approach to Legal Writing

Vol. 37 No. 4

The author is a professor of the practice of rhetoric at Duke University.

Our school systems have taught writing inefficiently and ineffectively throughout our history. Educators have not understood well how the communication process takes place. As a result, they have resigned themselves to treating the symptoms of bad writing as if those manifestations were instead the causes.

They have labored mightily to eradicate those symptoms in their students—believing, as it were, that if one never again coughed or sneezed, one would never have a cold. They have bought into a litany of advice about good writing, so long and widely accepted as to be considered unquestionable. Here are some of the major pieces of that advice, each followed by my opinion of its accuracy and helpfulness:

 

•      Avoid the passive. (Wrong.)

•      To make it better, make it shorter. (Wrong.)

•      Never allow a sentence to exceed 29 words. (Wrong.)

•      Write the way you speak. (Wrong.)

•      To see if your writing is good, read it out loud. (Wrong.)

•      Avoid the use of the verb “to be.” (Wrong.)

•      Every paragraph should start with a topic sentence. (Wrong.)

 

  Remarkably, the interpretive clues to the answers to all five questions are conveyed to the reader mainly by structural location of the sentence’s information. More simply stated, as readers we know where to look for what. Because readers expect these answers to appear in specific places in the English sentence, I call this way of looking at the language the Reader Expectation Approach. Future articles will look at each of these questions and their answers individually.

Grammatical construction. Readers pay different amounts of attention to information depending on in what kind of “unit of discourse” it appears. (A unit of discourse is any group of words that has a beginning and an end—phrase, clause, sentence, paragraph, section . . . all the way up to the complete document or book.) As we look at sentences, I am going to consider only three grammatical units, discarding all those complicated terms you may or may not have had to memorize in high school (such as “compound clause,” “complex clause,” “compound-complex clause,” etc.). The following three are the ones that most influence readers regarding the relative importance of their contents:

 

•The “main clause.” This group of words has a subject and verb and could stand by itself as a complete sentence.

•The “qualifying clause.” This group of words has a subject and verb but cannot stand by itself as a complete sentence. (Think of a clause that begins with the word “although.”) I have created this term. You will not find it in the grammar books.

•The “phrase.” This group of words is a complete unit but lacks either or both a subject and a verb.

 

Quite simply, readers give the (1) most weight to information that appears in a main clause, (2) less weight if it appears in a qualifying clause, and (3) the least weight if it appears in a mere phrase. This is of far greater importance than has been generally understood for any writing of complexity and force, as legal writing tends to be. Sometimes this concern for grammatical construction will coalesce with the concerns for structural location mentioned above; sometimes it will conflict. Writing cannot be made an easy thing; but we can get better at it. Thought is hard.

Context. Context controls meaning. No single sentence “means” by itself but only in combination with the other sentences that surround it. That may sound obvious; or it may sound profound. It is both. It causes problems when we try to talk about improving the construction of a given sentence—which these articles will spend a good deal of time doing. Two differing versions of the same sentence may each be excellent for two different purposes; but in a given context, one will serve better than the other. I will try to keep us aware of this as we go.

. . .

Trial lawyers, it can be argued, have the hardest writing task there is—much harder than that of doctors or scientists or philosophers. Legal writing is more difficult not because the subject matter is more complex than medicine or science or abstract philosophical thought, but rather because of the nature of its audience. When those other professionals write something, their audiences bend over backwards to figure out what the writer was trying to say.

 In stark contrast, the audience for a legal brief is often openly and energetically hostile. It may be a senior partner who will try to find every possible weakness because “Nothing gets out of this office until it is perfect.” Or it may be a judge, who, while holding in one hand your well-argued brief, in the other hand is holding an equally energetically argued brief proffered by the opposition. Or it may be an adversary who, though completely aware of what you were trying to say, will expend great energy to show that it doesn’t say that or says something else or is essentially nonsense. The existence of the hostile audience makes legal writing the hardest there is. With these articles in Litigation, I hope to be of help to you in fighting that fight.

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