Bullets: To Shoot or Not To Shoot?

(This is an update of an earlier post.)

When to Use Bullets?

Bullets are a modern, clean writing tool. They encourage spare writing because they enable you to leave out transitional words. Bullets work well in letters and memos, but they may be too informal for documents filed in court. You should almost never bullet case law or your paper may end up looking like a simple transcription of your research notes, rather than a thoughtful analysis of the cases.

Bullets or Numbers?

Bullets suggest that there is no hierarchy to the list, so only use bullets if all items in a list are of equal importance. If some items in the list are more important than others, use numbers instead and put the important items first.

What Kinds of Items Go in Bullets?

Don’t mix different types of items in one list. For example, don’t bullet a list about:

• Representation
• Reliance
• Intent
• Harm
• Giraffes.

Parallel Construction in Bullets?

Use parallel construction between bullets. If the first item is a word or fragment, later items must also be a word or fragment. If the first item is a full sentence or question, later items must also be sentences or questions. Here is an example of a list that has been corrected to use parallel construction:

The client asked us to consider several issues:

• Choice of law
• Personal jurisdiction
• What is the standard of review? Standard of review.
  

Rewriting the third bullet so that it is also a phrase solves the problem. 

Grammar in Bullets?

This is where most bullet writers shoot themselves in the foot. The front end of the sentence (the part before the colon) and the back end (the part after the bullet) must fit together. Mentally glue these two halves of the sentence together and read the glued version aloud to be sure it is grammatically correct. Here is an example of a list that has been corrected so that it has grammatical continuity:

The court will review:

• Choice-of-law issues
• Personal jurisdiction
• Did the trial court abuse its discretion? Abuse of Discretion.
  

(Putting each bullet in parallel construction will usually solve the problem.)

How to Punctuate and Style Bullets?

Bullets are a new style, so not everyone agrees on how to style them. Here is what I recommend:

• Put a colon at the end of the phrase of sentence that introduces the bullet.
• Capitalize the first word in the bullet.
• If the bullet is a word or a phrase, don’t put any punctuation at the end (except the last bullet will take a period).
• If the bullet is a sentence, put a period at the end.
• Do not put “and” at the end of the penultimate bullet.
• Always put a period at the end of the last bullet.

In other words, your bullets should look like my bullets in this post.

Overkill?

Keep bullets simple and clean. Bullets become visually complicated if they are spread over more than two facing pages.  Similarly, avoid bullets within bullets. The absence of any hierarchy will make the bullet points  hopelessly confusing.

—–

So–ready, shoot, aim!

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Setting Off Phrases Within a Sentence (Commas, Dashes, Parentheses)

There are three ways to set off phrases or any material that interrupts a sentence:

• Commas. Commas are neutral: We went to Tinker Theater, which is near the river, and saw King Lear.

• Dashes. The long dash—formally known as the em dash—adds emphasis and isolates material within a sentence: We went to Tinker Theater–one of the most beautiful theaters in the country–and saw King Lear. I love old theaters–especially at night.

• Parentheses. Parentheses take away emphasis: The stairwell at Tinker Theater was poorly lit. (Photo, Exhibit A.)

Although em dashes are standard modern usage, you don’t want to overdo them. Try not to use more than two sets of em dashes on any page. A third set suggests an unhealthy addiction. Bring the text right up to the dash, without putting a space before and after the dash. (The New York Times Manual of Style and Usage requires a space before and after the dash because the spaces are needed to format its print version in columns. Since lawyers don’t write in columns, we don’t need the spaces.)

(To make an em dash in Outlook Express and many other programs, make two hyphens and the program will automatically convert the hyphens to an em dash.  To make an em dash in Microsoft Word, use the shortcut alt0151 or click Insert/ click symbols on the far right/select more symbols, special characters and em dash. Simplify your life by assigning a shortcut key to the em dash and any other symbols that you use frequently.)

Save parentheses for references to outside material, such as Exhibits, or for very minor points. In our hierarchy of writing—where we lead from the top with our key points—parentheses suggest a lower layer of importance than ordinary text, so they often disrupt the flow of reading within a paragraph. Therefore, don’t use parentheses unless you really mean to downplay the material in the parentheses.

(The Usage and Punctuation Guide in the book explains how to use these marks in more detail and provides examples.)

Helpful Books on Legal Writing

Books of General Interest for Legal Writers (in my order of preference)

• Plain English for Lawyers, by Richard C. Wydick,  Carolina Academic Press, 2005 (The best source for sentence-level editing; contains excellent exercises for curing awkward constructions and wordiness within sentences).

• Writing to Win, by Steven D. Stark,  Main Street Books, 1999 (A modern, clean approach to legal writing).

• The Elements of Legal Style, by Bryan A. Garner, 2nd ed., Oxford University Press, USA, 2002 (A very readable guide by the leading proponent of plain English and the legal profession’s leading word maven).

• Typography for Lawyers: Essential Tools for Polished and Persuasive Documents, by Mathew Butterick,  Jones McClure Publishing, 2010 (The best source on designing clean, crisp documents and for answering all your word-processing questions.) Also check out Butterick’s website at: Typography for Lawyers, http://www.typographyforlawyers.com.

• The Lawyer’s Guide to Microsoft Word 2007, by Ben M. Schorr, American Bar Association, 2009 (a practical guide to Word 2007, tailored to legal writing).

• On Writing Well, by William Zinsser, 30^th Anv. Ed., Harper, 2006 (a classic reissued).

• All books by Edward R. Tufte, The Visual Display of Quantitative Information, 2nd. ed., Graphic Press 2001; Visual Explanation, Graphics Press, 1997; and Envisioning Information, 4^th ed., Graphics Press, 1990 (beautifully produced commentaries on effective chart making by the DaVinci of quantitative information; Tufte’s books are essential tools for anyone who works with data).

• A Plain English Handbook, U.S. Securities and Exchange Commission, Montezuma Publishing, 2004 (The SEC’s guidebook).

• Briefing and Arguing Federal Appeals, by Frederick Bernays Wiener,  4^th printing, The Lawbook Exchange, 2001(an authoritative and detailed source on this art form).

• The Mother Tongue, by Bill Bryson, Harper Perennial, 1991 (A humorous collection of trivia, tidbit and history, which will persuade you that our language is still evolving and leave you laughing at its mighty power to define, betray, and ennoble us. This book is a death knell to prescriptivists – otherwise known as They Who Think They Must Be Obeyed.)

• The Elements of Style, byWilliam Strunk and E.B. White,  5^th Anv. Ed., Longman, 2008 (the classic, also recently reissued, but some sections are considered outdated).

• The AMA Handbook of Business Writing: The Ultimate Guide to Style, Grammar, Punctuation, Usage, Construction and Formatting, by Kevin Wilson, Jennifer Wauson, g, American Management Association, 2010 (yet another useful usage guide; easy-to-find alphabetized entries)

Usage Guides (also in my order of preference)

• The New York Times Manual of Style and Usage, by Allan M. Siegal and William G. Connolly,  1999 ed., Three Rivers Press, (Clear alphabetized answers to the nitty-gritty questions you’ll face at the keyboard—an essential resource. Every writer should own this book).

• The Associated Press Stylebook, 3rd Ed, Basic Books, 2009 (same format as The New York Times Manual—choose one or the other. The Associated Press Stylebook, frequently cross references from one entry to another, so I prefer The New York Times Manual.)

• Woe is I, by Patricia T. O’Connor,  2nd ed., Riverhead Trade, 2004 (a relaxed, funny and workable approach to usage issues.)

• The Elements of Legal Style, by Bryan A. Garner,  2nd ed., Oxford University Press, USA, 2002 (A very readable guide by the leading proponent of plain English and the legal profession’s leading word maven.)

• On Writing Well,  by William Zinsser, 30^th Anv. Ed., Harper, 2006 (a classic reissued).

• The Elements of Style, by William Strunk and E. B. White, 5^th Anv. Ed., Longman, 2008 (another classic, also recently reissued, but some sections are considered outdated).

• Bryson’s Dictionary of Troublesome Words, by Bill Bryson,Broadway Books, 2004 (in Bryson’s own words, “A Guide to Everything in English Usage that the Author Wasn’t Entirely Clear About Until Recently”).

• Lapsing Into A Comma, by Bill Walsh,  McGraw Hill, 2000 (another grammar guide; the most thorough discussion of compound and hyphenated words; targeted to the newspaper industry).

• The Careful Writer, by Theodore Bernstein,  Free Press, Atheneum, 1995 (A particularly helpful resource for ESL students because it shows which prepositions go with various verbs).

• A Writer’s Reference, by Diane Hacker, Bedford St. Martin’s, 6^th ed., 2006 (excellent, practical handbook).

• Eats, Shoots and Leaves, by Lynn Truss, Gotham, 2006 (A best seller in Britain and the USA; more a commentary on the importance of punctuation than a how-to-punctuate book; some funny punctuation jokes but the book itself often differs from standard American usage).

The Courage to Conclude

Be brave and take a stand. As you make the transition from law school to the professional world, the impartiality you were taught in law school may hobble your ability to be a bold, creative lawyer. Newly minted lawyers are so trained to analyze both sides of a question that they are often reluctant to reach a firm conclusion. But meaningful advocacy requires that you go beyond a slavish repetition of precedent and that you take a position and think originally. Clients and colleagues won’t appreciate spending thousands of dollars to learn that the answer to their question is maybe and a conclusion that says maybe is not worth the cost of the research. So qualify your conclusion if you must, but you must reach a firm conclusion.Your colleagues and clients are paying you to tell them what you think and you should give them their money’s worth.

The best conclusions are often simply a straightforward, one-sentence answer to the question. If your research discloses a definitive answer to a question, begin with yes or no. Yes if and no if are also acceptable provided that the ifs are fact specific, as in The client may pursue his discrimination claim if he files his notice with the agency by February 1. If the answer really is maybe, at least be definitive about being hesitant. Explain any split in the authority, state which view is the weight of the authority, and analogize and distinguish the facts that characterize each line of reasoning.

Assume your Conclusion or Brief Answer is the only thing your reader will read. Because it probably is the only thing your reader will read.

Do it early. A Conclusion or Brief Answer in the beginning of your paper “primes” your readers because it tells them what to look for in the rest of the paper. When you answer the question in more detail later, that explanation will “click” like a puzzle piece snapping into the space that you have already prepared for it. So put your conclusion at the beginning of your paper—in the first paragraph, if you can, and certainly in the first page and a half. Your reader will be long gone by the time you get to the middle of the second page.

State your conclusion in plain English. Imagine running into the attorney who assigned you an issue as she is getting off the elevator and you are getting on. You have only a few seconds to answer her question, How is the Widget research coming? Your quick answer is your conclusion.

Say the conclusion aloud. Saying the conclusion aloud will force you to use plain English and simplify.

Explain why. Your answer should not simply state your ultimate conclusion. It should also explain why you reached that conclusion. Your readers cannot decide whether they agree with your conclusion unless you tell them how you reached it. Telling why in the Answer establishes your credibility .

Avoid hedging language. Hedging language betrays your fear of reaching a conclusion and shows a troubling lack of confidence in your own skills. Avoid language such as I could find no cases on point, it is difficult to determine whether, it is far from certain whether or it is possible that.

Be original.  Although we must base arguments on precedent, a memorandum or brief should never be a simple précis of the cases.  “Wrap” the case discussion in your own conclusion about the research.

A conclusion is like the ribbon on a gift. We put the gift in the box, we close the box, and then we make it attractive by wrapping it in a ribbon.  Your readers see the ribbon first and it’s the ribbon that makes them want to open the box.

Citations: in text or in footnotes?

Put citations in the body of the paper—not in footnotes. Yes, citations are clunky and disruptive. But they are also a substantive part of legal writing because they show the weight and authority of the case you are citing. Therefore, case citations belong in text, where your reader can find them easily.

Some recent opinions follow a trend to move book and page references to footnotes. Although moving book and page information to footnotes may make the paragraph itself more readable, dropping citation information to footnotes violates the essential design principle of proximity because it requires the reader to jump back and forth between footnote and text to piece together the complete citation. Thus, footnotes defeat the goal of keeping the reader’s eyes moving seamlessly through the paper.

So if the case law is important to your paper—and the case law is essential in any research memorandum or any paper that will be filed in court—keep your full citation in prose. Although citations admittedly disrupt the flow of legal writing, it is more disruptive to require the reader to jump between text and footnote.

In business law papers, put cases in footnotes if your colleagues do so. Business law papers routinely drop citations to footnotes because transactional attorneys may be less concerned about the case law than about the structure of the deal. Follow the leader and use the format your colleagues use.

Never use endnotes. Citations should never go at the end of your paper. It’s just too far for the reader to travel.

Expect citation format to change for the better. As we move to a paperless world and our readers grow accustomed to reading briefs and memoranda online, our method of citing cases should change. My book talks about the changes that we should expect to see. . . .

Quote with Care.

Quote sparingly. Judges and senior attorneys want you to summarize the cases for them. Quote from cases only if the language is extremely significant.

Introduce quotations with substantive sentences. The sentences that introduce your quotation should summarize the quoted language. For example, introduce a quotation with a sentence, such as In Smith v. Jones, the First Circuit also outlined the factors that determine whether more than a corrective disclosure is required. An effective introductory sentence spares the reader the agony of actually reading the quote. Avoid introducing quotations with bland phrases that tell nothing about the material to follow, such as In Smith v. Jones, the court held that . . . .

Avoid long quotations. Long quotations beg not to be read. Readers love block quotes because the block format highlights just what part of the page they may skip. 

Block long quotes. If you must quote a long passage of fifty words or more, set off that quote in block format: double space before and after the quote, single space within the quote and indent five or ten spaces at the left and right margins.

Think of your cases as places.

Lawyers use shorthand to avoid cumbersome references to case law or procedural history. Think of your cases as places and use here to refer to your client’s case and there and where to refer to the precedent, as in There, the court held that . . . . or Here, by contrast . . . . Avoid phrases such as the instant or present case. Simply say this case.

Keep most sentences short.

Short sentences are simple, clean—and often inspirational:

“Let there be light.”
-2 Corinthians. 4.6
“I have a dream.”
– Martin Luther King, August 28, 1963
“But let us begin.”
– John F. Kennedy, Jan. 20, 1961 (Inauguration speech)

Even if you are not seeding a universe or changing the course of history, you should keep your sentences short. Short, punchy sentences are a particularly powerful technique for beginning paragraphs. Even sentences within paragraphs should not exceed two or three lines.

But a long string of short sentences can sound choppy. Strive for rhythm and cadence. Vary your short sentences with an occasional longer sentence. Simply combine two short sentences in the middle of your paragraph to relieve the tedium of too many choppy sentences.

Put the most important part of the sentence at either end of the sentence.

Consider the sentence: Until the court makes its ruling, the client’s exposure remains uncertain. Here, the concern is the client’s exposure so that phrase should come first: The client’s exposure remains uncertain until the court makes its ruling. Alternatively, in a longer sentence, put the important phrase last in the sentence to add emphasis.

Put modifying words close to the word they modify.

Misplaced words and phrases create confusion. Consider the sentence: A judge who falls asleep often is not suited for the bench. Does it mean that a judge is not suited for the bench if he or she often falls asleep? Or does it mean that a judge who falls asleep may not always be suited for the bench—leaving open the possibility that our sleepy judge might sometimes be suited for the bench.

Only is also misleading if it is not placed next to the word it modifies. For example, Only Paul brought his books means that nobody but Paul brought books. Paul only brought his books means that Paul brought his books but didn’t do anything else with them—such as read them. And Paul brought only his books means that Paul didn’t bring anything but his books.

Work from general to specific within the sentence

For example, when using names or proper nouns, put the explanatory information about the party before the name itself. Consider the sentence The Company reached an agreement with Local 200, our client’s union. The sentence leaves the reader wondering for a brief second what role Local 200 plays in the case. So put the general phrase, our client’s union, before the specific identification, Local 200, and say The Company reached an agreement with our client’s union, Local 200.

Why plain English?

Now that you have spent your three years of law school learning a foreign language, the suggestion that you write in plain English may hit hard. Why plain English? What about all those expensive new words? The fancy legalese? The scholarly Latin?

Our clients speak plain English and you should too. Plain English is clean and transparent so it fosters trust. It’s easily understood so it promotes justice and order.  And it shows empathy for our poor readers.  If you want your readers to listen to and learn from what you say, you need to use the language they already know.  Plain English adds value because it makes legal thought accessible.

Not only that, but your clients will like you for it.

I’m posting specific tips and pet peeves under Plain English Tips

How plain is plain English?

Plain English is conversational English. If you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. Imagine you are writing for your Aunt Agatha, your neighbor or your friends on the train. These people will keep you real because they are very very smart and they will not tolerate fussy, impenetrable sentences. (And if you use fussy, impenetrable language in conversation, you problems are far too deep to be resolved in a writing program!)

Simply say each sentence aloud to edit for plain English and to cure clutter and grammatical errors. If you are smart enough to have made it through law school, the grammatical rules of modern English are embedded in your ear. Saying your sentences aloud is the only tool an educated writer needs for effective sentence-level editing.

And plain English does not mean simple English. You are entitled to use your massive vocabulary. But use it to achieve precision and nuance, not to show off your supposed intellectual superiority.

Use familiar, concrete words.

Use the Editing Workshop, rather than utilize it. Would you rather talk with someone or reach a human interface? Begin your argument rather than commence it. Focus on the beginning, rather than the inception. Explain your thoughts rather than elucidate them. End your memorandum rather than terminate it. Let your argument show rather than evidence your convictions. Use a term but avoid terminology. Follow the signs but ignore the signage. Get out of the car but don’t exit the vehicle. Go inside the house but don’t enter the residence. Remember that courts hold, explain and state but they do not indicate. If a proposal is feasible, it also doable. A statute that prohibits conduct also bans it. Additionally should be pared down to also. And would you ever voluntarily read a sentence that begins with Also of import to the arguments made . . . . ?

Don’t use “this” or “that” as a subject.

This, that or these should be used only as an adjective and not as a subject. Say I love these books, rather than These are the books I love. Instead of using this or that as the subject of your sentence, spell out what this or that refers to. For example, don’t begin a sentence with This means that . . . . Instead, say The defendant’s refusal to honor the contract means that . . . . Using this or that as a subject requires your readers to look back to the previous sentence to determine what this or that refers to and defeats the goal of keeping the readers’ eyes moving.

But you may use this or that as an adjective. Indeed, using phrases such as this theory or that contract to refer to material in the preceding sentence is a helpful transition technique. Thus, the theory of the corporate veil in one sentence can become that theory in the next sentence.

Lose the legalese

Avoid all legal jargon, such as in connection with, with respect to, on or about, the present or instant case (use here instead), pursuant to, said (as in said contract), same (as in paragraph 6 of the same) and such used as an adjective (as in such contract). If you find yourself stringing many words into one, as in heretofore, hereinafter, aforementioned, herewith or whereas, you have lapsed into legalese. Again, if you wouldn’t use a word in conversation with a colleague, don’t use it in your writing.

Use the passive voice sparingly but artfully

Passive voice is effective when you want to disguise the actor (Mistakes were made is more persuasive than Our client made mistakes), when the actor is hard to describe (such as when describing the legislative history of a statute), when dealing in abstractions (as in All men are created equal), when discussing many actors (as in The legislation was signed) or when you don’t know the actor (as in The building was vandalized).

But most passive constructions are simply wordy and impotent. Imagine if the anti-drug campaign Just Say No had been written in passive voice, as No Should Just Be Said. Contract language requiring that Notice must be given is ambiguous. Who should give the notice? 

Search for by and of to weed out passive voice. Set Grammar check on your word-processing software to flag passive-voice constructions.