Avoid Restating the Other Side’s Argument

Posted: March 29th, 2012 | Author: | Filed under: Mission Critical Stuff, Talking About the Cases | Tags: , , , , | No Comments »

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.



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Eight Steps for Proofreading

Posted: March 21st, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Proofreading | Tags: , , , | No Comments »

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.

Posted: March 20th, 2012 | Author: | Filed under: Proofreading | Tags: , , , | No Comments »

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

Posted: March 15th, 2012 | Author: | Filed under: Grammar, Punctuation, and Usage, Most Popular Posts | Tags: , , | No Comments »

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.



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More Clichés: Let’s Get our Ducks in a Row!

Posted: March 1st, 2012 | Author: | Filed under: Most Popular Posts, Plain English: Tips | Tags: , , | No Comments »

We lawyers are not alone in our use of clichés. Clichés seem to have infiltrated most professions. Police fear the word now and jazz it up to at this point in time and their investigations are always ongoing. In the business world, all job applicants are innovative, results-oriented, dynamic team players with a proven track record. Once those team players are hired, they are at the mercy of human resources departments that are always magnanimously reaching out to someone or, less magnanimously, downsizing or reallocating resources. The business world is relentlessly proactive and cheerily focused on optimizing results and utilizing resources. In those hallowed halls of business, someone always wants to dialogue, to circle back, or to get face time. There are matrices to build and paradigm shifts to navigate. To be a valued employee, you must row in the same direction, hit the ground running, and get your ducks in a row. And once your ducks are in a row, you must be on your game so that you can run a smell test to discern when someone has put lipstick on a pig.

If your husbandry skills are lacking, you can always leave the business world for academia where students must demonstrate competency or proficiency and avoid risky behaviors. But educators are ready to help by providing support services, by nurturing life-long learners, and by encouraging emerging readers. (But I do admire the optimism!) And when those emerging readers finish emerging, they can learn about books from literary critics, who always seem to find the books that are translucent, gripping, haunting, riveting, compelling, lyrical and evocative.

Admittedly, some professional clichés serve a real purpose in spoken language. They are picturesque or funny and the shared language encourages bonding among enslaved tribes. But clichés don’t belong in our writing because our writing should be slightly more formal than our speech.

So let your writing identify you as a member of the human race, rather than as a member of a particular profession. Now, I’m off to put lipstick on my pig . . . .

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Legal Clichés that Should Be Illegal

Posted: February 28th, 2012 | Author: | Filed under: Plain English: Tips | Tags: , | No Comments »

Welcome to cliché week on my blog! Every profession has its own clichés. This week, we’ll review some common clichés in the legal profession and the world beyond.

Clichés are a writer’s cop-out. Using clichés suggests that you can’t find your own words. Avoid tiresome clichés and speak human instead.

Let’s start with some common legal clichés :

  • within the purview of
  • slippery slope
  • Achilles’ heel
  • Pandora’s box
  • fishing expedition
  • part and parcel
  • lion’s share
  • pulled out of whole cloth
  • can’t see the forest for the trees
  • the devil is in the details
  • all fours
  • red herring
  • fraught with peril
  • second bite at the apple
  • cut to the chase
  • it is axiomatic that
  • eminently qualified
  • incumbent upon
  • dilatory tactics
  • begs the question

… and so on ad nauseum.

Coming next: clichés from other fields, such as human resources. (Friends, we are not alone.)

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Avoid phrases beginning with “it is.”

Posted: February 9th, 2012 | Author: | Filed under: Most Popular Posts, Plain English: Tips | Tags: , , , | 2 Comments »

It is important to a  Avoid throat-clearing phrases that begin with it is, such as it is clear that or it is possible that. Nine times out of ten, you can delete the phrase without sacrificing meaning.

If the phrase does add some nuance, rewrite the phrase with an adverb.  For example, It is apparent that the company lost the documents should be rewritten as The company apparently lost the documents.  (Yes, I know. I’m violating my own rule about avoiding adverbs. But apparently adds a nuance here that is worth keeping. Apparently means that you didn’t see the company lose the documents, but the company no longer has the documents, so you have brilliantly concluded that they just might be lost.)

Here are some common it is phrases that deserve the ax or corrective surgery:

  • It is clear that (If it is so clear, then why must you point it out?)
  • It is logical that  (You should not need to point out the logic in your argument. The logic should sing through on its own.)
  • It is likely that (Just move likely into the sentence, as in The court will likely hold . . . .)
  • It may be that (Oh dear. Just say possibly.)
  • It is apparent that (Try apparently.)
  • It is probable that (Just use may as the main verb in the sentence, as in The company may make an offer.)
  • It is imperative to note that ( EEEEEK!)
  • It goes without saying that (Then why are you saying it?)
  • It is axiomatic that (Translation: It is axiomatic that this sentence was not written by a thinking, feeling human being.)
  • It follows that (This phrase suggests that it probably doesn’t follow at all.)

In all my years driving a purple pen, I’ve seen only a few (as in two) it is phrases that are worth keeping. I like it is well established that and it is black letter law that. These phrases convey the weight of the authority and add substance to the sentence, so they earn their weight on the page.

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2 Comments on “Avoid phrases beginning with “it is.””

  1. 1 Oliver Lawrence said at 10:09 pm on February 15th, 2012:

    Great stuff! Expunge those expletives!

  2. 2 mariebuckley said at 9:02 pm on February 16th, 2012:

    Well – I guess that’s another way of putting it!


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Capture your reader in the opening of your paper

Posted: January 26th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Structure (Important Stuff Here) | Tags: | No Comments »

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.

 

 

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