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February 04, 2022 Appellate Issues | Winter 2022

Writing from the Reader’s Perspective: How the English Language Really Works

Presented by Prof. George D. Gopen

By Maggie Smith

We began this seminar with an introductory limerick that (somewhat) set the tone for what was to come:

Every appellate judge and lawyer has to write.
Our next speaker will teach us to do it right.
Please keep your mind and ears open
to learn great things from Professor Gopen.
He is a professor emeritus from Duke.
That impressive position was not a fluke.
He won the 2011 Legal Writing Institute Golden Pin award.
So, we know you will not be bored.
You’ll be glad I’m leaving the floor
to make room for the great Professor.
Professor Gopen, take it away.
Everyone else shout out, YAY!

Professor Gopen began by explaining the key inquiry for good writing is always, “Did the reader get delivery of what the writer was trying to say?” If the answer is yes, the writing was good enough. But if the answer is no, then it does not matter how “dazzling or impressive or sexy” the writing was, it failed. Even worse is a writing where the reader believes he or she has completely understood the writer’s point, but the reader is wrong and proceeds to analyze the issue from the wrong perspective.

This premise—that readers misunderstand intent of the writer—formed the basis of the seminar. According to Professor Gopen, combatting this problem is simple: arrange the words in a specific order and structure that sends the “proper reading instructions” to the reader.  Simple, right? The next hour, however, showed us it was not so simple.

Professor Gopen suggested there are four major questions that a reader must answer correctly by the end of reading in order to ensure the reader understands the writer’s true intent:

  1. What’s going on here? What’s going down? What’s the action? What’s happening?
  2. Whose story is this? From whose or what perspective am I supposed to digest all the rest of this stuff?
  3. How does this sentence connect backwards and forwards to its neighbors?
  4. What word or words should I be emphasizing in this sentence because they are the stars of the show?

If the reader gets any one of these four questions wrong, the reader will not understand what the writer has to say. Good writers understand that readers know where to look for the answer to each of those four questions, which makes the structure of each sentence key.

For example, placing the phrase “since 1981” at the beginning of the sentence suggests chronology. Placing it at the end of the sentence suggests it was a watershed moment. Placing it in the middle of the sentence suggests it is basically filling.

Turning to the question of “whose story is this,” Professor Gopen emphatically tells us that our grammar teachers’ admonitions that the passive voice should be avoided is “bad, stupid, wrong! Ridiculous, impossible, single worst thing we teach about the English language, get it out of your head.”

Whether to use the passive voice depends on the perspective you are presenting. For example, looking at “Jack loves Jill” (active) versus “Jill is loved by Jack” (passive), which verb tense to use depends on whose story it is.  If you are trying to tell Jill’s story, the passive is far preferred to the active.

It is also important that your verb articulates the action of your sentence on a regular basis. Readers are always looking for the verb to see what is going on in the sentence. Good writers look at the verbs in each sentence and ask the question, “Is this what’s going on in my sentence?” Your main verb should be toward the front of your sentence and then add the rest of the words in your sentence around it.

As to the fourth question (“What word or words should I be emphasizing in this sentence because they are the stars of the show?”), Professor Gopen said this is the number one “problem” in legal writing today. Readers want to see emphasis at particular points in a sentence (the “stress position”) and it is the writer’s job to make those stress positions effectively, but very few writers do this well.

The stress position happens at the end of the sentence because readers want closure. It is also critical to put important points in the same stress position over and over throughout your writing so that the reader subconsciously begins looking for it in that place. Professor Gopen also reminded us that “the number of words in a sentence has nothing to do with the quality of the sentence.” A sentence will be too long “when it has more viable candidates for stress position than it has stress positions.” Conversely, a sentence is too short “when it has no viable candidate for stress position.”

Professor Gopen used the following example to explain the importance of the stress position:

As used in the foundry industry, the term “turn-key” refers to responsibility for the satisfactory performance of a piece of equipment in addition to the design, manufacture, and installation of that equipment. P&L agreed that the definition of turn-key is commonly understood in the foundry industry.

In the first sentence, “of that equipment” occupies the stress position. But “of that equipment” offers the least amount of significance of any words/phrases in the whole sentence and is the least deserving of the stress position, making this “a horrifyingly bad sentence.”

Likewise, in the second sentence, “the foundry industry” occupies the stress position. But “foundry industry” was just referenced in the sentence before, so placing it in the stress position in the second sentence fails to effectively use the “power” of the stress position.

The actual author of these sentences indicated there was only one term he wanted to stress: “satisfactory performance.” That term, however, is buried in the middle and essentially overlooked.

Professor Gopen explained, “Good writing is characterized by two characteristics – number 1, whenever a word arrives, any word, there’s already something you can do with it, you link it backwards, you can lean it forward, you can answer a question, you can arrange a question, you’re not told ‘hang onto this, later on you’ll know why I gave it to you,’ and secondly, everything’s always moving forward.”

Getting the reader to this point requires restructuring the two sentences in such a way as to get “satisfactory performance” in the stress position:

As P&L agreed, the foundry industry uses the term turnkey to signify responsibility not only for the design manufacturing installation of that equipment but also for its satisfactory performance.

The 2011 Legal Writing Institute Golden Pin award winner closed his seminar with the following, “Language and music work in the same way. They move in the same way. They raise expectations in the same way and then they can be fulfilled and/or violated.” At the end of the day, it is up to us—the writers—to write in a way that allows the reader’s expectations to be fulfilled. 

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Maggie Smith


Maggie Smith is a Member with Frost Brown Todd LLC and practices in the area of appellate litigation. She is the 2021 “Lawyer of the Year” for appellate practice by Best Lawyers, and is recognized as a leader in the field of appellate practice by Indiana Super Lawyers®, Chambers USA, and Best Lawyers in America®.