His or Her? Avoid the Gender Minefield by Using Plurals.

Posted: April 24th, 2012 | Author: | Filed under: Grammar, Punctuation, and Usage, Plain English: Tips | Tags: , , | No Comments »

It’s hard isn’t it? As lawyers, we don’t always know the gender of the person we are writing about or we are writing about abstract issues that could apply to anyone—male or female. His sounds sexist and it is inaccurate where you don’t know the gender. Her sounds a little too political. His or Her is more accurate than either word alone, but it still sounds awkward and technical.

You can avoid the gender minefield by using plurals. Rewrite A student may leave his or her books on the tables as Students may leave their books on the tables.

And never use his/her. His/her fails the test for plain English because it is not even pronounceable.

In a longer work, such as a book, you can always turn to the marvelous Dr. Spock for an answer. In his classic book, Baby and Child Care, Dr. Spock talked about his abstract babies by alternating between his and her. It worked in 1946 and it is still a good technique. (Dr. Spock introduced each abstract baby, by saying “Let’s say it’s a boy (or a girl).”  That introduction that would not be necessary today, since we are accustomed to thinking across genders.)


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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.


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

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How to “Scrub” Hidden Metadata from Word Documents

Posted: March 28th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Proofreading, Word Processing Tips | Tags: , , , | No Comments »

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.


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

Posted: March 23rd, 2012 | Author: | Filed under: Plain English: Tips | Tags: , , , | No Comments »

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

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.


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!


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The Three Essential Rules for Writing

Posted: March 13th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Structure (Important Stuff Here) | Tags: , , | 1 Comment »

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.


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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One Comment on “The Three Essential Rules for Writing”

  1. 1 A Lawyer's Guide to Writing » Blog Archive The importance of pattern in legal writing said at 9:40 pm on May 31st, 2012:

    […] The most common examples of pattern in legal writing are forms. Because we are so familiar with common legal forms, they make reading easier because we know where to look in the form for certain information. But don’t be enslaved to a form. Use a form only if it follows the three essential rules of writing. […]

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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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Don’t bring no double negatives . . .

Posted: February 14th, 2012 | Author: | Filed under: Plain English: Tips | Tags: , , , | No Comments »

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!


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



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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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Avoid adverbs and use a strong verb instead.

Posted: January 31st, 2012 | Author: | Filed under: Most Popular Posts, Plain English: Tips | Tags: , | No Comments »

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 generallyusuallycustomarily, or basic. An assertion that Client X usually honored gift certificates will translate as But Client X didn’t honor this gift certificateThe 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 plainlyclearly, 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.


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

Posted: January 25th, 2012 | Author: | Filed under: Talking About the Cases | Tags: , | No Comments »

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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Choose words based on how they sound.

Posted: November 7th, 2011 | Author: | Filed under: Plain English: Tips | Tags: , | No Comments »

Write as if your paper were going to be read out loud and choose words for their spoken impact. The same techniques that work for poets often work in prose, as well. Your words should have rhythm—a pleasing cadence of stressed and unstressed syllables within sentences and an appealing variation between short and long sentences.

For example, alliteration puts punch in your writing if you keep it subtle and don’t overuse it. Consider the famous brief for the schoolchildren in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (also cited in Steven Stark’s Writing to Win, Main Street Books, 1999). There, Thurgood Marshall and his colleagues used alliteration to summarily distinguish the other side’s cases. In Brown, the Board of Education’s brief cited equal protection cases that raised common nuisance issues, such as noise or overhanging cornices. Marshall and his colleagues dismissed that precedent with one memorable phrase. They argued that those cases involved a mere “cautious calculation of conveniencesthat had no bearing on the essential rights undermined by segregated education. The phrase “a cautious calculation of conveniences” is a pithy sound-bite—made memorable through alliteration—that dismisses and distinguishes all the opposing authority Marshall faced.

Listen as you write and let your ear be your guide.

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

Posted: June 27th, 2011 | Author: | Filed under: Grammar, Punctuation, and Usage | Tags: , , , | No Comments »

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.)

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Citations: in text or in footnotes?

Posted: June 3rd, 2011 | Author: | Filed under: Talking About the Cases | Tags: , , , | No Comments »

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. . . .

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Quote with Care.

Posted: June 3rd, 2011 | Author: | Filed under: Talking About the Cases | Tags: , , | No Comments »

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.

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Think of your cases as places.

Posted: June 3rd, 2011 | Author: | Filed under: Talking About the Cases | Tags: , , | No Comments »

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.

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Keep most sentences short.

Posted: June 3rd, 2011 | Author: | Filed under: Plain English: Tips | Tags: , | No Comments »

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.

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

Posted: June 3rd, 2011 | Author: | Filed under: Plain English: Tips | Tags: , | No Comments »

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.

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