Avoid adverbs and use a strong verb instead.

My grandmother-in-law—an accomplished poet and a wise woman—once advised me that Adverbs are not your friend, Dearie. She’s right. Adverbs don’t belong in your writing because they add little and often backfire. For example, The defendant actively disputes that claim simply means that The defendant disputes that claim.  (Forgive my use of the adverb simply. I like the emphasis it adds here.) The company strongly cautioned is hesitant and bureaucratic. The company banned is stronger and more believable. Rather than use an adverb, describe the conduct specifically. For example, replace The company thoroughly met its obligations to warn with The company explained the risk of nerve impairment.

Adverbs can also be evasive. Avoid hedging words such as generally, usually, customarily, or basic. An assertion that Client X usually honored gift certificates will translate as But Client X didn’t honor this gift certificate. The contract is absolutely clear means that The contract is clear or—more likely—that The contract is not clear at all. The defendant arguably met its obligations means that The defendant did not meet its obligations this time.

Search for ly as part of your proofreading edit to weed out pesky adverbs, such as plainly, clearly, or patently.

————————————————————————

So how strong are your verbs?

P.S. Chapter 4 of My Book, which covers Plain English and Other Tricks to Help You Sound Human, contains more plain English tips like this.

Capture your reader in the opening of your paper

You will win or lose your reader in the “opening” of your paper, so even the most brilliant Argument or Analysis cannot undo the damage wrought by a sloppy opening. What are the ingredients for a strong opening? Whatever format you use, you must do three things in your opening:

1. Explain the background “story.”
2. Make the issue clear. (The issue will usually be clear from the story. If it is not, you should ask a question.)
3. State your answer in big, bold neon lights.

In a substantive memorandum, you have—at most—a page and a half to “open.” The strongest writers “open” in the first paragraph. Avoid a vague discussion of abstract legal principles and frame your opening around your client’s facts.

Tweet

Subscribe in a reader

A better way to say “I couldn’t find any relevant cases. . . .”

When we research obscure or novel issues, we often find that there are no cases on point. Many lawyers then explain this lack of case law by writing, “I could not find any relevant cases.” That phrasing suggests that you lack confidence in your research. Why couldn’t you find any relevant cases? Did you not have enough time? Did Westlaw or LexisNexis self-destruct before you finished researching? Where did you look?

If you didn’t find it, it’s probably not out there. Since you are responsible for only the reported case law, simply say “No reported cases hold that. . . .” or “No reported cases address the issue of. . . .” These phrases show that you are confident about your research, even though you came up empty handed.

Always try to convey confidence and authority in your writing.

Tweet

Subscribe in a reader

In legal argument, avoid the mysterious “one.”

In legal argument, avoid the third person “one,” as in “one could argue” or “one might add.” Too many “ones” arguing can lead to ball bouncing—a distracting batting back and forth of ideas.  Also avoid “on the one hand” because it leaves the reader waiting for you to talk about “the other hand,” which is like leaving your reader to wait for an invisible shoe to drop.

Simply get to the point. Don’t say:

One could argue that the world is flat.

Simply say:

The world is flat.

Chances are that enough parties are already involved in your case, so you don’t need to add a mysterious, invisible player.

Tweet

Subscribe in a reader

Let’s get serious about the serial comma.

A tiny comma can be worth a lot, so let’s talk seriously about the serial comma.

What is the serial comma?

The serial comma is the comma before “and” in a series of words. Here is a serial comma in living color:

I like apples, bananas, and cherries.

What’s the rule on serial commas?

In the civilian world, the use of the serial comma is a style choice. Generally, the civilian American approach does not use the serial comma, while the British approach uses it.

Although the grammar police differ on this issue, most require the serial comma for technical writing. The New York Times Manual of Style and Usage, which rules in the civilian world, does not require the serial comma. But The Chicago Manual of Style, the U.S. Government Printing Office and Bryan Garner all endorse the serial comma.

What’s a poor, confused lawyer to do?

You, my friend, are not in the civilian world. The serial comma is always more precise. Because precision is  essential in legal writing, you should always use the serial comma.  You’ll never offend anyone by using it and, in the legal world, a single comma can be worth a million dollars.  Click here to see a case where a comma was worth a million dollars (although the comma at issue was not of the serial variety): http://n.pr/milliondollarcomma

In transactional drafting, the serial comma is a must. Although the serial comma may not be as essential in our prose writing, it’s easier to be consistent and use the serial comma in all legal writing.

But, but, but (for those of you who dream of other things) …

But if you are writing the great American novel, be aware that the serial comma compromises the pacing of a sentence. Consider the famous line by Robert Frost:

The woods are lovely, dark and deep.

The stately and majestic pacing of this line is lost once we add a serial comma:

The woods are lovely, dark, and deep.

A widely circulated story says that Frost’s publisher made the unforgivable mistake of inserting that serial comma when the poem was first published—and that Frost made the publisher reprint the book to remove the offending comma.  So if you expect to be the next poet laureate of your nation or if you are writing the next great American poem or novel, the choice is yours.

The Bottom Line?

In legal writing, use the serial comma. The money you save may be your client’s!

The Final, Final Word

And if you don’t believe me, trust Stephen Colbert. Here is his ringing endorsement of the serial comma: http://bit.ly/AAlUEx  (at 4:25) What more do you need?

Tweet

Subscribe in a reader

Let your tone suggest integrity and wisdom.

You probably learned one of the most important rules of practicing law in kindergarten. Remember when your teacher told you not to use fighting words? It was wise advice.

In legal writing, you should aim for a tempered, balanced tone. Spare the vitriol and accusations. Wisdom and reason speak for themselves and need not hide behind fighting words. Let your pitch suggest your integrity and show the court that you are reasonable and worth dealing with. An understated tone conveys your honesty and candor. A shrill tone suggests that you should not be trusted.

And keeping a balanced tone should not mean that you sacrifice passion and zeal. For example, in his dissent from the Supreme Court’s recent decision allowing corporate spending in campaigns, Justice Stevens finished with a biting comment that nailed his thoughts in history. Showing that his ninety years have not diminished his convictions, Justice Stevens concluded: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 979 (2010) (Justice Stevens, dissenting) (also available at http://www.supremecourt.gov). Words are an advocate’s sharpest tool so let your convictions inspire your language.

So avoid the fighting words and play nice!

Tweet

Subscribe in a reader

Trouble! Conflict! Challenge!

One of the most common tidbits that successful writers pass on to the wannabees is to get your character in trouble–big trouble–and to keep them in trouble. Why? Because conflict and challenge make for good stories.

So how lucky are we lawyers? We don’t have to get our characters in trouble. They are usually already in trouble when they come to us. Conflict? It comes built into our cases. The adversarial character? Just look on the other side of the “v.”

And that is yet another reason why every legal paper should focus on the facts–the “story” behind the case that involves real human beings (well, sometimes  real corporations), with real problems that need real answers. Papers that focus on only abstract legal theory miss the chance to tell the real story that gives context to the legal question.

So do your papers tell a “story?”

Tweet

Subscribe in a reader