APRIL 2019 | AROUND THE ABA

10 tips for better legal writing

The legal writing process is not “one size fits all” and “people need to find the one that fits them best, David Howard Spratt, professor of legal rhetoric at American University Washington College of Law, said in the recent “Landslide Webinar Series: Take Your Legal Writing from Good to Great—Drafting Tips from the Pros”. The webinar was sponsored by the ABA Section of Intellectual Property Law and ABACLE.

No matter your personal style, all writers want to be considered credible. To do so, "the grammar has to be there and the proofreading has to be there, because those are the things that make the impression with your reader,” Spratt emphasized.

Spratt and his fellow panelists shared these basic musts:

Planning: Think about who you’re writing the document for, by asking yourself these questions: “Who is my reader?” “What is my reader’s relationship to me?” and “Why am I writing this? Is it to inform, persuade or to accomplish some other end?”

Spratt recommended giving your reader just what he needs to know. “Sometimes we write and regurgitate everything we know about a topic 

  1. Check verb tense. A singular subject should have a singular verb and a plural subject should have a plural verb.
  2. Note word placement. “The verb should come after the subject and be as close to the subject as possible,” Spratt said.
  3. Stay active. Writing in the active voice is clearer, more concise and easier for the reader to understand. Writing in the passive voice makes the reader “struggle to figure out what you’re saying,” he said.
  4. Placement matters. “Put the modifying words as close as you can to the words you’re modifying,” Spratt said. Julie Schrager, legal writing coach at Schiff Hardin LLP in Chicago, said she’s often asked about where to place the word “only” in a sentence. It, too, should come as close as possible before the word or phrase that it modifies. “My trick is you generally push the only as far back in the sentence as you can until it doesn’t make sense,” she said.
  5. Use the Oxford comma. “People fight this one all the time because sometimes in previous professions or in nonlegal writing – I call it ‘illegal writing’ – you don’t use the Oxford comma, but lawyers like to speak in terms of elements, and punctuation is very important,” said Spratt.
  6. Utilize comma splices correctly. Spratt called these “very fashionable, but very wrong,” and added, “people are splitting sentences apart with a comma for no reason.” A few alternatives to the comma splice are a semicolon, adding the word “and” or making two separate sentences.
  7. Avoid ambiguity. Stay away from words such as, “it,” “this,” “that,” “such” and “which,” to refer broadly to an idea in a preceding sentence because it could cause confusion.
  8. Aim for clarity. Avoid double negatives: if you have no reason to use it, don’t use it. Words such as “not insignificant” and “not uncommon” generally confuse the reader and slow them down.  In addition, one word can often easily replace several. Spratt used the examples of “in light of the fact that…” could easily read “because.” Replace “in order to” with “to” and “in the vicinity of” with “near.” By tightening your writing, you free up valuable space for substance. “These multiple word propositions do nothing but cloud your writing,” he said.
  9. Use help to catch errors. Schrager uses the website, naturalreaders.com, which will read aloud what you copy and paste into it. “It’s easier to catch mistakes when someone else is reading it,” she said.
  10. Emulate Warren Buffett. Schrager shared quotes from Warren Buffet, who is often cited for his high-quality writing in investor letters. His average sentence length is 13.5 words and his letters per word average around 4.9, which is difficult for lawyers to achieve, she said. Spratt recommended that lawyers “impress clients with the ability to get a favorable result instead of using big words.”

Panelist Kevin Nelson, also of Schiff Hardin, lauded Buffett’s writing as well.  “Investor portfolio materials are some of the most dry materials, normally you’re going to see. So, the fact that he makes them interesting and relatable to the audience speaks volumes to what we can do as legal writers, he said. As a rule of thumb, Schrager said, “If it’s a word that Dickens or Shakespeare would have used, you shouldn’t be using it.” The more complicated a thought or concept, the shorter the sentence should be.

“The only way to improve your legal writing or any kind of writing is to keep doing it,” she said.

The experts recommended digital resources for writing:

Wordrake.com offers useful tips on clarity and precision

Briefcatch.com a legal editing tool that helps to tighten your writing

Naturalreaders.com help one to spot missing words, typos, punctuation mistakes

PurdueOWL, an online writing lab with writing exercises

Grammar Girl answers grammar questions.

And two books:

“Aspen Handbook for Legal Writers, 3rd edition”, By Deborah E. Bouchoux.

“Plain English for Lawyers”, by Richard Wydick.

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