Avoid Restating the Other Side’s Argument

Don’t fall into the trap of restating the other side’s argument as a prelude to attacking that argument. A true advocate never dedicates a sentence to explaining the opponents’ position.

For example, if the issue is whether your client has defrauded customers, don’t dedicate a sentence to the other side’s argument that “Courts will pierce the corporate veil where the corporation has defrauded its customers.” Instead, restate the argument from your client’s angle: “The courts will not allow a pierce where a corporation is adequately capitalized unless there are clear markers of fraud.” Or work opposing authority into an “although” clause to avoid dedicating a whole sentence to discussing that authority. For example, say “Although courts have pierced the veil where corporations have defrauded their customers, our clients never acted fraudulently.”

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Make your opponents do their own work. Don’t do it for them.

How to “Scrub” Hidden Metadata from Word Documents

What is Metadata?

Most Word documents contain hidden metadata that shows the history of the document. That data shows when the document was first created, who authored the document, total editing time, and the last time the document was modified. Even more troubling, if the document was edited in Track Changes, those comments and revisions may still be accessible even though you have turned off Track Changes.

You never want your opposing counsel or a judge to see a comment in your brief explaining that a certain case goes against your position, but that you have decided not to cite that case. And you certainly don’t want them to see a comment that may contain confidential information about your client. Indeed, you don’t want to share information that might seem harmless, such as the date you created the document or the amount of time you spent editing the document.

The PDF Option

If you are sharing a document that does not need to be edited or revised, save it as a PDF before sharing. The PDF will not show hidden metadata.

How to “Scrub” a Word Document

But if you must share a document in Word format, you’ll need to take some extra steps to “scrub” hidden metadata from the document. Indeed, you might want to “scrub” your documents as a matter of routine before sharing them with anyone outside your office.

First, you should instruct Word  to warn you before you save or send a file that has been edited with Track Changes:

• Click on the File tab
• Select Options
• Go to the Trust Center box
• Click on Trust Center Settings
• Click on Privacy Options on the right
• Check Warn before printing, saving or sending a file that contains track changes or comments.

Second, you must scrub the paper of hidden metadata. Turning off Track Changes will not scrub your paper of comments. Instead, you must use the Document Inspector to remove the hidden metadata. Here’s how:

• Click on the File tab
• Click Check for Issues in the Prepare for Sharing box
  
• Click Inspect Document
• Check four of the six boxes: (1) Comments, Revisions, Versions, and Annotations; (2) Custom XML Data; (3)Document Properties and Personal Information; and (6)(at the bottom) Hidden Text.
• The Document Inspector will then identify the types of hidden data in the document and give you the option to Remove All of each type of data.

The Document Inspector will not remove highlighting, so you must remove it yourself:

• Click the File tab
• Click Options
• Click Display
• In the box for Page Display Options, turn off Show highlighter marks.

Work from Templates to Avoid the Problem of Metadata

In The Lawyer’s Guide to Microsoft Word 2007, Ben Schorr offers a great suggestion for limiting metadata. He suggests that you avoid the common practice of working from existing documents, because existing documents may still contain metadata. Instead, he recommends that you work in your office’s squeaky-clean templates and copy passages from the donor document into the template as needed. (Every lawyer should have Schorr’s book on their desk. Here’s the link to the updated version: The Lawyer’s Guide to Microsoft Word 2010. ) But remember, if you work in Track Changes in the new document, you will have to scrub it when you are done.

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So never share your secrets. How clean are your documents?

(By the  way, my book, contains many more tips like this.)

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How to Proof for Formatting Errors

As you get close to finishing your paper, work in a view that shows what your paper will look like when printed. In Microsoft Word, my favorite views are Print Layout and Full Screen Reading View. If you have been working with Track Changes turned on and are not ready to accept all changes, review the document in Final view, without markups showing. (Click the Review Tab/go to the Tracking box/keep Track Changes enabled/select Final (not Final Show Markup)). Editing in these views is similar to editing on hard copy—only better because you can make the actual corrections as you go.

The Print Preview view is particularly useful for catching formatting errors. (To get to Print Preview view, click on File and select Print or use CTRL+F2. The Print Preview view will show on the right of your screen.) Scroll through your paper quickly, using the page up and page down keys, to review for formatting and style. For example, scroll through to check that all Roman-numeral or primary-level headings are written in parallel construction, such as sentences or phrases. Now go back to the beginning and review each heading quickly for consistency in capitalization, such as the use of initial caps. Now scroll through even more quickly to be sure that those headings are sequentially numbered. Finally, page through at warp speed to check indents and line-spacing. Next, look for any tables to be sure that they are all aligned correctly. Now check page numbers. Next, drop down to your subheadings or secondary headings and run those headings through the same levels of review. If you page through at lightening speed, your eye will easily pick up on any problems with margins, indents or spacing. Indeed, as you proof some of these design elements, your eye can stay in the same place on the screen—making it easier to pick up things like a shift in indents or margins.

Yes, this is a multi-step process, but each step goes quickly. And the errors show up in neon lights if you are focusing a laser eye on looking only for that type of error.

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Eight Steps for Proofreading

1. Go to the Zone

Again, proofreading is a different skill than writing or editing and it requires a different mindset. As you take this final pass at your paper, you must resist the urge to think the big thoughts. Ignore content. Get out your magnifying glass and drop down to the level of sentences and individual words.

2. Divide Tasks

Don’t read your paper through from beginning to end and try to catch every error. Instead, approach each proofreading task separately. First, check spelling. Next, read sentence by sentence or paragraph by paragraph for syntax errors. (I suggest you read backwards. Read on.)  Next, check formatting and design issues.

If you approach each proofreading task separately, you will be sure that you complete each proofreading task and that you give each task the attention it needs.

3. Spellchck

Oops! I mean spell check. Spellcheck is annoying—and annoyingly smart. (Why does it remind me of the Recalculating voice on my GPS?) Spellcheck should be your front-line defense against embarrassing spelling errors. It won’t catch misused words, such as principal instead of principle, but it will catch most of your spelling errors.

Many lawyers avoid spell checking because Spellcheck highlights many legal terms as spelling errors. However, if you add these words to your custom dictionary, Spellcheck will stop chastising you every time you use these words. (To add a word to your custom dictionary, right click on the squiggled word and click Add to Dictionary in the pop-up box. If Add to Dictionary does not show up as an option, it’s because you have not yet created a custom dictionary. I’ll post on that fascinating topic later.)  Add common legal terms, client’s names and technical terms that you use frequently to your custom dictionary.

4. Read Your Work   s       l       o       w       l       y

Spellcheck will not reliably differentiate between common homonyms, such as there and their, or catch properly-spelled-but-misused words such as complaint, instead of compliant. So you must actually read your work at least once to catch errors. The key is to read slowly. But how do you slow your self down?

5. Read Backwards by Paragraph

Most of us are so programmed to work at top speed that we need a technique to slow us down to proofreading speed. First, print out your paper. Then work backwards from the end of the paper to the beginning. Some people suggest reading each line backwards or each sentence backwards, but that level of backwardness is too glacial for me. Instead, try reading backwards by paragraph. Treat each paragraph as if it were an island. Start with the last paragraph and read it through. Then move up to the second-to-last paragraph and so on. If you are really error prone, treat each sentence as an island and work backward sentence-by-sentence.

6. Put a Check Beside Each Paragraph As You Read

Once you are satisfied with a paragraph or sentence, put a check beside it. The hand slows the mind down, so manually putting a check beside each paragraph or sentence will force you to  read carefully.

7. Review Headings Separately from Text

Substantive headings are an editing tool because they verify a strong foundation. Therefore, even if your paper does not require a separate table of contents, treat your headings as a unique unit and review them separately. Are headings correctly numbered? (Again, confusing standard numbering will make your headings work against you, rather than for you.) Does each heading lead into the next? Are all headings written in parallel grammatical structure? Are subheadings correctly labeled?

8. Use Your Word-Processing Program to Help You Proofread

As you write, use word-processing features to avoid errors. Use the Autocorrect function to correct proper nouns that you often misspell, to be sure you are using your chosen identifying terms throughout, or to assure consistent usage (such as % instead of percentage or its instead of it’s). (To add a word to Autocorrect, click on the File tab/click Options/click Proofing/click Autocorrect Options/check Replace text as you type/fill in the word you want replaced and the word you want to replace it with/click OK. ) Set up Grammarcheck to require periods inside quotations. (Click on the File tab/click Options/select Proofing/in the box for When correcting grammar and spelling in Microsoft Word, click Setting/click Punctuation required with quotes/select Inside.)

Once you are done writing, use the Find function to weed out pesky constructions and common punctuation errors. Search for by to weed out passive voice and for ment and ion to weed out nominalizations. Weed out pesky adverbs by searching for ly. And keep a mental list of terms that you commonly misspell and then search for those terms. I can’t spell lose for the life of me, so I always search for loose as part of my proofing ritual.

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By the way, it took me forever to proof this post!

P.S. from the Shameless-Self -Promotion Department: My Book has lots more tips like this!

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The Importance of Proofreading.

When senior attorneys express concern to me about a young colleague’s work, they invariably focus on minor proofreading errors. This laser focus on perfection—justified, or not—means that you, too, must focus on proofreading. Lawyers and judges are crazy about the little things so you must aim for perfect. Yes, perfect is the enemy of done. But in the legal world, you are not done until it is perfect. Sloppy proofreading errors will detract from your credibility and drive your colleagues to distraction.

Failing to perfect your paper can also damage your reputation in a very visible way. In 2004, a federal district court judge in the Eastern District of Pennsylvania reduced the fees due to a lawyer by $30,000 where the court considered the lawyer’s work “careless, to the point of disrespectful.” In a scathing opinion, the court gleefully repeated some of its favorite typographical errors and characterized those errors as “epidemic.” I’m not citing or linking to the opinion here, because I promised not to pick on people in this blog. But the opinion has been widely discussed on the Internet—increasing its visibility on search engines. You never want to find yourself in the position where a Google search of your name delivers a scathing indictment of your abilities.

Proofreading is a different skill than writing or editing and it requires a different mindset. It’s tedious, scientific work. It  requires you to resist the urge to think the big thoughts and to drop down to the level of sentences and individual words.

In my next posts, we’ll discuss some of the techniques for proofreading, so stay tuned!

-Marie

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Subliminal Fear of Subparagraphs

Many of us harbor deep, subliminal fears about writing in subparagraphs. We wonder when we should use subparagraphs instead of prose or bullets. We forget how to punctuate the little buggers. And we sweat about grammar—particularly “parallel construction.” Let’s address each fear.

When to Use Subparagraphs

Subparagraphs are helpful if you have a list of similar items and some items are more important than others or the order of the items matters. If all the items are equally important, you can use Bullets instead.

How to Punctuate the Little Buggers

When using subparagraph format:

1. put a colon at the end of the phrase that introduces the subparagraphs;
2. put a number at the beginning of each subparagraph;
3. conclude each numbered subparagraph with a semicolon;
4. put and or or after the semicolon in the penultimate paragraph; and
5. end the last subparagraph with a period.

Since White Space is so delicious, your reader will love you for indenting your subparagraphs and putting a blank line between them.

If you are the squishy type, you can squeeze your subparagraphs into a traditional paragraph, with no indents and no line spaces. The squishy version is fine if you have only a few subparagraphs, but otherwise the white-space version goes down more easily. The same rules apply in the squishy format: (1) use a colon to introduce the subparagraphs; (2) put a number at the beginning of each subparagraph, but put the number in parentheses so it is easy to pick out of text; (3) put a semicolon at the end of each subparagraph; (4) put and or or at the end of the penultimate paragraph; and (5) finish with a period.

In other words, your subparagraphs should look like the subparagraphs I just wrote.

The All-Important And or Or

In legal writing, the words and or or are often the most important part of the subparagraph, so be sure that you use them correctly. And signifies that every element of the test matters. The five parts of misrepresentation, for example, always require the word and because a party must satisfy all five elements of the test. If the elements are optional or interchangeable use or.

Never ever use and/or. And/or is sloppy, ugly writing and it fails the test for plain English because it’s not a phrase we would use in conversation. (If you use and/or in conversation, your problems are far deeper than anything I can help you with here.)

Parallell Construction

Writers frequently make grammatical errors when writing subparagraphs because the front half of their sentence (the part before the colon) does not fit nicely with the back half (the part after the colon). To avoid these grammatical errors, “glue” the front and back of the sentence together. Mentally copy the words in each subparagraph to the end of the introductory phrase before the colon. Does the glued-together sentence make grammatical sense? If not, make whatever edits are necessary to make the two halves of the sentence fit together grammatically. Do this for each subparagraph.

Or simply begin each sentence the same way. Even the most subparagraph-challenged writers usually write the first subparagraph correctly. So use the same construction in later subparagraphs and your subparagraphs will glue together in the most grammatically wonderful way. For example, in my subparagraphs above, each subparagraph begins with a command: put, put, conclude, put, end.

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So fear not. Number away.

The Three Essential Rules for Writing

All my suggestions for powerful writing boil down to three guiding principles. And these principles apply not only to formal briefs and memoranda, but to the many mediums in which modern lawyers work—letters, email, blogs, newsletters and even PowerPoint.

The Three Rules

1. Use plain English.

2. Lead from the top.

3. Tell your reader what to do next.

Rule One: Use Plain English

We’ve all heard the common admonition to “use plain English.” Our clients speak a modern language and we should too. So if you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. Speak human.

Rule Two: Lead from the Top

The principle of “leading from the top” is the single, most effective tool for strong writing and the essential rule for structuring any piece of writing. If you open your paper by telling your reader what is important, they will look for that information as they read. When you present that information later, the reader will seize on it and it will click quickly, like a puzzle piece snapping into a space that you have already prepared for it. And the principle of leading from the top is like a fractal because it applies on large and small scales. Lead a paper with your conclusion. Lead a section with a substantive heading. Lead a paragraph with a summary sentence. Lead an email with a strong subject line. Lead the message itself with a summary sentence. Leading from the top is the key to tight, logical writing.

Rule Three: Tell Your Reader What to Do Next

Sane people don’t read briefs, contracts and business letters for pleasure. They read them because they are being paid to read them or because they have a problem and need to read them. What do they want? They want to know what to do next and your job is to tell them. What is the client’s problem and what should they do next? What relief are you asking the court to grant?  What do you want your colleague to do after reading your e-mail or your letter? Use your writing to make things happen in the real world.

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So one, two, three. Get set! Write!

(If you want a deeper explanation of these three principles, my book covers these principles and others in much more detail.)

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Don’t bring no double negatives . . .

We all know to avoid double negatives, such as “He is not bringing no bananas.” But we should be equally wary of the double or triple conceptual negative, in which one negative concept cancels out another negative concept, which cancels out the original negative concept.

For example, what is “a decision vacating an injunction prohibiting the state from requiring a sex offender to register?” Think positively and say “The decision allows the state to require a sex offender to register.” If you must explain the procedure more precisely, do so in a follow up sentence: “Specifically, the court vacated an injunction. . . .” (Your reader will forgive the conceptual double negative in the “specifics” if you have already translated the double negative for them.) What does it mean if “A court reversed a decision enjoining the enforcement of a regulation that prohibited the use of alcohol?” Simply say that “The Appellate court allowed the town to prohibit the use of alcohol” and follow up with a sentence detailing the procedural history, if necessary. “The speech would not be an unprotected expression under the First Amendment” means that “The speech would be a protected expression.” “The court voted not to allow” means that “The court voted to prohibit.” “It is unlikely to be inaccurate” means “It is likely accurate.”

So don’t be so negative. Stay positive!

-Marie

P. S. My book, The Lawyer’s Essential Guide to Writing (ABA 2011), zealously avoids double negatives.  #shamelessbookpromotion

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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.

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Use “Signal” Words to Tell the Reader Where You Are Going.

Think of your argument or analysis as a line drive from point A to point B. Occasionally, you must detour to discuss an exception or a contradictory point. Your reader will appreciate directional signals at those transitions. ”Similarly,” “for example,” “in particular” and “in addition” let the reader know that you are developing the main point. “However,” “although” and “by contrast” show that you are taking a detour to discuss an exception to a rule or to distinguish opposing authority. “Therefore” signals a conclusion. “Again” tells your reader that, yes, you have already discussed this point so they can relax. These directional signals are powerful tools that let your reader know the value of a sentence before they read that sentence.

Here are some helpful “signal” words:

• First, Second, Third
• For example
• Similarly
• In particular
• By contrast
• However or But
• Again
• Also
• Therefore
• Finally (every reader’s favorite word).

But be careful not to begin every sentence within a paragraph with a signal word or your sentences will sound formulaic. Vary the form of your sentences occasionally. For example, instead of saying “Similarly, in Smith v. Jones, the court held that….” say “In Smith v. Jones, the court also held that …. ”

So are you sending good signals to your reader?