Writing is one-dimensional: It involves putting one word in front of another in a line. Thus, writing well means optimizing not only word choice but also word order. For a litigator, this means optimizing the order of words in a sentence, of sentences in a paragraph, of paragraphs in an argument, and of arguments in a brief or other forensic document.
I offer here practical, turnkey tips for meeting the first of these four challenges: the order of words in a sentence. This guidance should be of help to all legal writers, whether new or experienced. Even those who already write very well may find that this article helps them explain to the lawyers they supervise why they have edited their work as they have. It may thus help them teach those lawyers how to write better.
Getting a sentence’s sequence of words right requires the writer to understand the function each region of a sentence performs. For this discussion, let’s not classify the regions according to their syntactic function (subject, verb, complement, dependent clause, etc.). Let’s focus instead on their geography. Let’s talk about the beginning, the middle, and the end. And let’s begin at the end.
The end of a sentence is where the reader naturally pauses. Here is where the point of the sentence, whatever it is, starts to sink in. For this reason, you should try to conclude every sentence with the word or group of words (the “idea”) you wish to stress. In oral advocacy, this idea can appear elsewhere in the sentence, but in written advocacy, it must go at the end because the page does not allow you to indicate (except crudely, perhaps, through italics) the changes in volume and inflection that you would make if you were speaking in court. Putting the most important idea at the end of the sentence—what Professor George Gopen has called in the pages of this journal the stress position—is the most surefire way to enhance the persuasive force of an otherwise well-constructed sentence. To put the most important idea at the end of a sentence was one of two tips Judge Richard Posner gave me and my co-clerk when, at a lunch in 1994, I asked him for advice on writing well. The advice appears in good non-legal writing texts as well. E.g., Joseph Williams, Style: Ten Lessons in Clarity & Grace (3d ed. 1989) (Lesson 4: The Grammar of Emphasis).
Inexperienced legal writers sometimes find it hard to identify the idea within a sentence that should have the greatest impact. Take, for example, the following sentence:
On May 14, 2021, a grand jury indicted the defendant.
What is the most important idea in that sentence? It depends on what you are trying to do. If you are introducing the defendant for the first time in, say, a statement of facts, then the most important idea is the defendant, and the sentence is good as written.
But what if you are arguing that the limitations period has elapsed? Then the important idea is May 14, 2021, and the sentence should be revised:
A grand jury indicted the defendant on May 14, 2021.
Or what if you are about to argue that the indictment should be dismissed because fewer than 12 jurors voted to indict? If that is the point toward which the passage is building, then the important idea is a grand jury, and the sentence should be revised:
On May 14, 2021, the defendant was indicted by a grand jury.
To be followed, perhaps, with this:
That grand jury, when it sat on that day, lacked a quorum: Only 11 jurors were present.
Once you have identified the idea you want to stress, it is relatively easy to get it to the end of the sentence if it is not already there. To be sure, word order is more rigid in English than in some other languages. Unlike readers of, say, Ancient Greek or Latin, English readers need to see a grammatical subject relatively early in a clause or sentence to avoid getting confused. But several features of English make this constraint less of a straitjacket than it might seem.
If the most important idea in the sentence is a direct or indirect object, then standard English word order—subject-verb-complement—serves just fine. But what if the important idea is the subject? As in this sentence:
On December 2, the Supreme Court unanimously reversed the decision.
No problem. Switching from the active voice to the passive will push the subject of the original sentence forward toward the end.
On December 2, the decision was reversed unanimously by the Supreme Court.
Don’t be ashamed to use the passive voice if you have a good reason to use it. Using the passive voice to give an active verb’s subject more emphasis is one of several reasons why skilled writers will switch to this voice.
And if the adverb, unanimously, is the key idea here, you can move that word to the end of either of the two preceding exemplary sentences:
On December 2, the decision was reversed by the Supreme Court unanimously.
On December 2, the Supreme Court reversed the decision unanimously.
Here, the default advice to use the active voice, as in the second example, probably applies. But it may be overridden by other considerations, depending on the context in which the sentence appears, some of which are discussed later.
What if the important idea is the verb? English offers several ways to end a sentence with a verb. In litigation and other professional writing, the most useful of these techniques involves nominalizing it: converting the verb into a cognate noun. The following sentence is OK:
To obtain post-petition financing, a Chapter 11 debtor must file a motion and the court must approve the financing.
But the idea the writer is trying to emphasize is that financing will not be obtained unless it is approved. To emphasize that, nominalization, with a few harmonizing changes, comes to the writer’s aid:
To obtain post-petition financing, a Chapter 11 debtor must file a motion and secure the court’s approval.
Writing textbooks frown on nominalizations for good reasons. They often obscure or blunt a verb’s force. Their overuse is a telltale sign of flabby, muddy, or bureaucratic prose. But they still have several good uses, one of which is to move a verb to the end of a sentence. It is hard to find a well-written brief or article that avoids nominalizations altogether.
Even adjectives, which, in English, generally precede the noun they modify, can be dispatched to the stress position of a sentence:
The proposed auto-delete policy will result in the loss of not only harmful evidence but also helpful evidence.
The sentence becomes more forceful once you appreciate that helpful is the word that deserves the most emphasis:
The proposed auto-delete policy will result in the loss not only of harmful evidence but also of evidence that is helpful.
Although the sentence is a bit longer, it is not worse for this reason. To the contrary, because the revision places the idea you wish to stress at the sentence’s conclusion, the sentence is marginally clearer and more persuasive as well.
Above all, make sure that subordinate or other clauses don’t deprive the stress position of oxygen, as in the following sentence from a submission on behalf of the subject of a government investigation:
It has been five years since the government completed its investigation and failed to identify any improper trading by Jones, while admonishing four other traders.
The sentence needs to be revised:
It has been five years since the government completed its investigation and, while admonishing four other traders, failed to identify any improper trading by Jones.
With that small revision, the client, Jones, is far better served.
While you use the end of the sentence to persuade, you use the beginning to educate. The beginning of the sentence is where you help the reader anticipate the topic of the ensuing sentence and, more important, understand how it relates to the sentence that just concluded. Armed with that understanding, the reader will be more receptive to the argument the sentence or paragraph is trying to make.
Let’s return, for example, to the following example:
On May 14, 2021, the defendant was indicted by a grand jury.
How should you begin the next sentence in a motion arguing that the grand jury issued its indictment without a quorum? As suggested above, a good way to begin the ensuing sentence would be by echoing the preceding sentence’s two final words: grand jury:
That grand jury, when it sat on that day, lacked a quorum: Only 11 jurors were present.
By beginning the sentence with the same word or words that concluded the preceding, readers perceive an immediate connection between what they just read and what they are reading now. That is reassuring and reduces cognitive noise. The potential value of repeating at the beginning of a sentence the word or words that concluded the preceding is not novel or unique to English. In his second-century textbook on rhetoric (the closest classical analogue to legal writing), Hermogenes of Tarsus called the technique epanastrophe, literally, return. For English speakers, lookback might be a better metaphor.
Lookback can be implemented using the same grammatical techniques English offers for moving a word or phrase to the end of the sentence. Using the passive voice, for example, can set up lookback:
This case concerns the drug alendronate. Alendronate is prescribed to treat osteoporosis.
Writers wrongly taught to avoid the passive voice altogether will revise the passage to read:
This case concerns the drug alendronate. Physicians prescribe alendronate to treat osteoporosis.
But the revision has not improved the passage. To the contrary, by turning the focus of the reader to the prescriber rather than the prescribed, the revision has created a false impression that the focus will now shift to medical prescribing practice rather than remain on the drug itself. Readers look to the beginning of the sentence to understand the connection between the preceding sentence and what will ensue. Too many shifts will make the reader carsick.
Lookback is a useful technique for beginning a sentence, but it is not always necessary or practical. And its overuse can become tedious or seem contrived. If you want to draw a connection between two sentences in a more subtle way, other techniques are available.
You can, for example, begin a sentence with a prepositional phrase, a participial phrase, or a subordinate clause that embeds within it the idea with which the prior sentence concluded:
Participial Phrase: In B v. D, the Supreme Court held that . . . Applying that holding, this court should . . .
Prepositional Phrase: The Supreme Court construed the 1984 Bail Reform Act in B v. D. In that case, the defendant had assaulted a federal marshal while the defendant was drunk.
Subordinate Clause: In B v. D, the defendant was detained because the court found clear and convincing evidence that his appearance at trial could not be ensured by any combination of conditions. Although the opinion in that case did not consider whether electronic monitoring was a suitable pre-release condition, the court’s reasoning implied that it would have reached the same conclusion even if that mode of pretrial monitoring had been available.
In each of these three sentences, the writer has embedded within the opening phrase or clause the word or idea that occupied the stress position of the preceding:
held that: that holding
B v. D: In that case
conditions: condition
In this way, the writer shows the reader the connection between the two sentences without ending and beginning the sentences with the same word. Prepositional phrases are also excellent starters of sentences that begin paragraphs or arguments (so-called topic sentences), as they can orient the reader very effectively.
But in using such prefatory phrases and clauses, be careful never to precede the main clause’s grammatical subject with more than one. While good fiction writers will often string two or more phrases together before revealing the sentence’s subject (e.g., “Once upon a time, in a land far away, . . .”), two subject-preceding phrases is one too many for the litigator, whose audience—a judge—is reading quickly and is often grumpy, to boot. Take this sentence, for example:
In 2018, although it did not hold the officer liable for false arrest, the court held the officer liable for unlawful arrest.
This short sentence is hard to follow solely because the writer delayed subject discovery too long by placing before the appearance of the subject (“the court”), first, a prepositional phrase and, then, a subordinate clause. The fault is easily fixed.
In 2018, the court held the officer liable for unlawful, but not false, arrest.
Or consider:
In Judkins v. Acme, while the appeal was pending, the court required the infringer to recall all marketing materials.
To make this sentence more reader-friendly, move the subordinate clause to a position where it follows the grammatical subject:
In Judkins v. Acme, the court required the infringer, while the appeal was pending, to recall all marketing materials.
English always allows you to “stuff” clauses that precede the subject into some fold that follows it.
A particularly useful source of sentence starters are the abundance of prefatory words and phrases English provides for showing the logical connection between two thoughts. Here is a non-exhaustive list of such logical connectors:
Therefore, . . . (or Thus or Accordingly)
Moreover, . . .
Indeed, . . .
For example, . . .
In particular, . . .
As a result, . . .
By contrast, . . .
To be sure, . . .
In the alternative/Alternatively, . . .
Finally, . . .
Even if . . .
Consistently with this [approach, theory, argument], . . .
On the other hand, . . . (if preceded by On the one hand)
Nonetheless, . . .
That said, . . .
. . . , however, . . .
But . . .
And . . .
These connecting words or phrases, when placed at or very near the beginning of a sentence, can be analogized to traffic signals or road signs: They show the reader the direction in which the argument is heading or turning. Successful fiction writers use logical connectors only occasionally, if at all. One will find them only rarely in the works of London, Wodehouse, Rowling, or any other fiction writer that members of the public read voluntarily. But that does not mean you should eschew them. Despite their non-colloquial, even pedantic tone, they play an indispensable role in helping the reader understand the flow of logic in complex legal arguments, a difficult task that fiction writers do not face. You should not feel awkward using them, at least not in the argument sections of briefs.
Note, importantly, that most of the logical connectors identified above do not count as phrases when applying the proscription against more than one subject-preceding phrase. The following sentence is fine:
In B v. D, by contrast, the court affirmed the judgment of conviction.
The logical connector, by contrast, does not count against the “one subject-preceding phrase” limit.
And what of the middle of the sentence? What goes there? The flippant answer is “anything that doesn’t go anywhere else.” That is not all that far from the truth. The middle of the sentence is where you put all the words you need to make the beginning and end of the sentence work. More helpfully, you should conceive of the middle of the sentence as the region that transports the reader as efficiently as possible to the end of the sentence, the stress position, where persuasion—your overarching goal—occurs.
To help the middle of the sentence serve its role in ensuring efficient exposition, recall some common, guiding principles.
One is Strunk & White’s admonition to keep related words together. This is true in all writing, but it is especially important in litigation. Shakespeare—writing passages to be spoken, not read, and operating under metrical constraints not applicable to prose—can be forgiven for having Hamlet’s father’s ghost report that “Sleeping in my orchard, a serpent stung me.” But you will find that when you “dangle” participles, the speed-reading judge may get lost or at least take a millisecond more to process the sentence than the judge can afford to spare, as in reading the following:
Rather than excluding the confession, the prosecutor received permission from the court to offer the confession in evidence.
To avoid this outcome, keep the participial phrase close to the noun to which it relates:
Rather than excluding the confession, the court permitted the prosecutor to offer the confession in evidence.
The most common types of words and phrases to get separated from the words to which they relate are prepositional phrases and adverbs. Consider:
He would periodically review trading in the stocks for which the specialists made markets for unusual activity.
Simply moving the prepositional phrase for unusual activity to immediately follow the verb it modifies converts this nonsensical sentence into perfectly good prose:
He would periodically review for unusual activity trading in the stocks for which the specialists made markets.
Prepositional phrases involving time or duration often stray from their intended position. This can lead to unintended ambiguity:
The court issued its decision holding the officer liable for the unlawful arrest in 2018.
The sentence should be revised as follows:
In 2018, the court issued its decision holding the officer liable for the unlawful arrest.
Unless, that is, the arrest, as opposed to the decision, occurred in 2018. If so, the original sentence is fine as written. But you should consider whether 2018 deserves the emphasis it receives by appearing at the end of the sentence. If not, make it an adjective and place it before unlawful arrest:
The court issued its decision holding the officer liable for the 2018 unlawful arrest.
In this way, you avoid depriving the stress position of oxygen.
Only is a word whose placement warrants particular attention. Because it can operate as both an adverb and an adjective, it can potentially modify several words in a sentence. Consider this sentence:
The directors only discussed the proposed acquisition.
Where does only belong? It depends on what you mean. If you mean that only the directors, not the officers as well, participated in the discussion, only should appear (as an adjective) before the directors:
Only the directors discussed the proposed acquisition.
That eliminates the ambiguity.
If you mean that the directors only discussed the acquisition, and did not also vote on it, then only is positioned correctly (as an adverb), but perhaps could use some contrasting phrase. For example:
The directors only discussed, but did not vote on, the proposed acquisition.
And if you mean that the directors discussed only the proposed acquisition and no other subject, then only is positioned very badly. Only needs to be deployed to a position where it is clear that it modifies the proposed acquisition alone.
The directors discussed only the proposed acquisition.
Always be on the lookout for words or phrases that have straggled away from the words they modify, and shepherd them back into the fold. This is more important in legal writing than in non-legal writing because legal writing is the only genre of writing (with the possible exception of student writing) that is read very quickly by, for the most part, unwilling and often impatient readers. You must do everything to make the read as smooth and as painless as possible.
Another familiar proscription is to delete unnecessary words. This advice is so common and commonsensical as to be a platitude. Here is a list of words or locutions common to legal writing that can always be compressed:
in order to → to
whether or not → whether
as to whether → whether
in violation of law → unlawful
in the event that → if
the fact that → that
notwithstanding the fact that → even though
given that → because
It should be noted that → Note that
It cannot be seriously contended that → Surely (and then negate the untenable proposition)
It is for this reason that → This/That is why
is able to → can
each and every → each or every
stipulate and agree → stipulate or agree
with respect to → (almost anything else)
Like the verbal tic in terms of, with respect to indicts the writer for not having taken enough time to think through the idea a sentence is trying to express.
Under the heading of deleting unnecessary words also falls the useful technique of compressing “verb + nominalization” formulations into the verbs from which the nominalization derives. Here is what I mean:
He conducted a deposition of X. → He deposed X.
She provided advice to X. → She advised X.
He gave information to X. → He informed X.
Deleting words that are unnecessary, by definition, makes sentences more efficient and hence more easily processed by the speed-reading judge or client. But do not mistake this prescription for the bad advice to “keep sentences short.” A paragraph consisting of one short sentence after another will make for pretty tiresome reading. The better advice, at least in the context of stand-alone sentences, is to make sentences as long as, but no longer than, the complexity of their ideas requires.
Consider, for example, the following concluding sentence of an advisory memorandum:
For the foregoing reasons, we believe the better view under applicable law is that the proposed policy would be upheld as lawful under U.S. law.
One can readily imagine why a young lawyer, eager to impress his supervisor with how well he has learned the dialect of U.S. Litigator English, would submit a draft with such an august peroration. The problem, however, is not its diction or style. For professional writing, they are fine. The problem is that the underlying idea is extremely simple, so simple that even the relatively short sentence that embodies it is not commensurate with the simplicity of its thought. The more capable writer will compress that into a curt formulation:
For these reasons, the proposed policy is probably lawful.
But shortening a sentence will not always make it better. The words to be deleted must be truly unnecessary. Often sentences that seem turgid, bureaucratic, or otherwise unclear are not unclear because they are too long but because they are too short; because the writer, owing to laziness, confusion, or both, has failed to express ideas with enough words to make their meaning pellucid. Consider:
The statement can be explained by two things, both of which rest at the crux of this investigation.
This sentence is only 18 words, below the 20-word average of sentences in popular magazines. But it is as clear as mud. The reason is not that the writer has used too many words. The problem is that the ideas the writer is trying to express are moderately complex. Their proper exposition requires more words, not fewer:
To understand the statement, one must appreciate two things, both of which are critical to any balanced assessment of whether the Department should file charges.
To be sure, the sentence as revised is not especially impressive or well constructed. Many readers will find better ways to express its ideas. But it is hard to argue that lengthening it made it worse.
Or take the following sentence one could easily encounter at the outset of a draft research memorandum:
You have asked whether frustration of purpose may be successfully asserted under circumstances not specifically recited in a force majeure clause.
This is a very poor sentence for several reasons, most of which I shall not belabor. But its fundamental flaw is that it is lazy. It tries to collapse a moderately complex thought into a sentence whose length can accommodate only simplicity. Here is a revision:
You have asked whether the defense of frustration of purpose may apply when a contract’s force majeure clause does not recite as an excuse for non-performance the circumstance purportedly frustrating the contract’s purpose.
Longer, yes. But also clearer, more informative, and more professional.
Finally, I draw attention to two rhetorical devices the litigator should banish from any region of a sentence: bombast and sarcasm.
The reason to avoid bombast requires little discussion. As litigators, we all know how satisfying it is to declaim that an adversary’s argument is “fatally flawed,” “absurd,” or “preposterous.” Most of us have also encountered clients or co-counsel who, after receiving a first draft of a brief too restrained for their taste, send over a heavy markup larded with over-the-top expressions of outrage. After innumerable bar association and judicial conferences at which judges have lamented how they find such hyperbole distracting and wearisome, we litigators should take the hint. We should refrain from rebutting arguments—including the many that are truly preposterous and absurd—with chest-beating and disparagement.
Sarcasm also has no place in any sentence, but it calls for a more nuanced discussion. Anyone who follows the ratings of prime-time political commentators (whether on CNN, Fox News, or MSNBC) knows that human beings enjoy watching articulate people advocate extreme positions sarcastically. The human taste for sarcasm is so strong that commentators who make their nightly sermons drip—no, gush—with sarcasm find themselves better compensated than even the most successful trial lawyers. Many politicians on both ends of the spectrum also use sarcasm to devastating effect, especially at staged political rallies. But note that sarcasm in these contexts is deployed solely to entertain and to firm up support for a position among groups of like-minded people. It is not used to flip votes or to persuade a person whose mind is not made up—or, worse, a person who has formed an initial view opposed to one’s own. For the undecided or hostile reader—the reader for whom litigators are retained to write—sarcasm is off-putting, even threatening. It will harden confirmation biases more reliably than any other rhetorical device. For this reason, you should purge sarcasm from all your submissions. Unless the decision maker is already on your side (in which case the submission likely does not matter), sarcasm carries risks the prudent litigator should not want to take.
Writing good sentences is only the beginning of good legal writing, but that is just another way of saying that it is its foundation. Efficient, persuasive sentences are not only good in and of themselves; they provide a clean workspace for the more difficult task of constructing paragraphs, arguments, and briefs. Sometimes drafts, your own or others’, that don’t seem editable on first read become more tractable once you give their sentences the sorts of makeovers I have described. If you can apply automatically the “sentencing guidelines” I have offered here, you will be well positioned to focus on the more difficult and subtle challenges that written advocacy presents.
