Your Written Work: Capturing the Judge’s Attention—Part II

Use Active Voice

“My one pet peeve in terms of writing style involves active versus passive writing,” says Kenneth M. Klemm, New Orleans, LA, cochair of the ABA Section of Litigation’s Pretrial Practice & Discovery Committee. “I find myself losing interest when writers use the passive form. It definitely makes for a better story when one tells it like a story rather than a legal recitation of facts,” he advises.

Active voice brings the reader into the action. There is a difference between “The man was bitten by the dog” versus “The dog bit the man.”

Which has more punch—more power?

Passive:           The stop sign was ignored by the Defendant.
Active:            The Defendant did not stop at the stop sign.

Passive:           Smith v. Jones was omitted by the Plaintiff in his brief.
Active:            The Plaintiff failed to cite Smith v. Jones.

Word Choice

Let’s now turn to word choice. An extreme example illustrates this point. I once read a passage on the power of words that went something like this: “Before the death camps, before the SS and before the Nazis, all Hitler had were words.” The words we choose make a difference.

I believe law school screws most of us up when it comes to word choice. After spending a lot of money, and three years of our lives, we want to “sound” like lawyers. I know I did. Getting back to plain language was an unlearning process for me. I think the law schools recognize this and instead focus on training advocates.  I have welcomed a decline in “heretofores” and “aforementioneds” in most motions I read.

However, some lawyers still pride themselves on using obscure vocabulary. The test of whether to use a word in court, or in writing, is whether or not you use that word in the real world. I never ask my wife if we are going to dinner “prior or subsequent” to the movie. I have never read a brief with “before” and “after” and thought to myself, “Gee, how unprofessional, don’t they know ‘prior and subsequent’?”

Mark Twain said the difference between the right word and the almost right word is the difference between lightning and the lightning bug. As long as I am on a roll, my next pet peeve is “know” versus “aware.” In the real world we “know” things. However, in court people who used to “know” things in the real world suddenly become “aware” of the same things. “Know” is a more powerful word than “aware.”

Two books can help every lawyer with word choice. The first is Blink: The Power of Thinking Without Thinking by Malcom Gladwell. The second is Words That Work: It’s Not What You Say, It’s What People Hear by pollster Dr. Frank Luntz.

In Blink, Gladwell looks at how words affect our actions through the principle of priming. One experiment involved a scrambled-sentence test where you had to eliminate one word so the sentence made sense. The test could be completed very quickly. The first group had sentences that needed to have words like “bold,” “rude,” and “disturb” thrown out for the sentence to make sense. The second group had words like “respect,” “polite,” and “considerate” that needed to be thrown out for the sentence to make sense.

Both groups were instructed to return the tests to the test administrator. As the test takers came down the hallway, they found the administrator’s colleague standing in the office doorway chatting with the administrator. The first group interrupted within about five minutes. The second group? The time limit for the test was 10 minutes. The majority never interrupted. They just stood there politely holding their test—and, as Gladwell quotes the experimenter, “These were New Yorkers!”

The second book concentrates on word choice. For example, Exxon is no longer in the “oil drilling business”; it is in the “energy exploration business.” Las Vegas is no longer the seat of the “gambling” industry, but rather the “gaming” industry. Corporate America certainly knows the power of the best words.

I once gave a speech to a group of high school students about the dangers of drunk driving. I used the word “accident.” A member of Mothers Against Drunk Driving came up afterward and, very politely, urged me do adopt the term “avoidable crash.”

The words we choose make a big difference to the reader. The English language has a very rich vocabulary. So, if your client does it, it is a “plan.” If the other side does it, it is a “scheme.”

If I still haven’t convinced you, let me try one more test:

“Ishmael is the name I should be called.”

“The name I wish to be called by is Ishmael.”

“My moniker is Ishmael.”

“Call me Ishmael.”

See what I mean? Herman Melville did.

Hon. Mark A. Drummond is an associate editor for Litigation News.

Hashtag: #activevoice, #wordchoice

Resources

• Malcolm Gladwell, Blink: The Power of Thinking Without Thinking (Back Bay Books 2007).
• Dr. Frank Luntz, Words That Work: It's Not What You Say, It's What People Hear (Hyperion 2007).

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