Avoid stuffy language and use familiar words instead.

Avoid stuffy, academic language. Use familiar, concrete words instead. Here are some plain English alternatives to some common stuffy phrases.

So how stuffy are your words?

-Marie

P.S. My book, The Lawyer’s Essential Guide to Writing: Proven Tools and Techniques has hardly any stuffy words.

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Strong Verbs Add Zing to Your Writing

Colorful verbs convey images and add punch to your writing. Babies wail. Toddlers whine. Children fidget. Teenagers flirt. Hearts flutter. Later in life, traffic crawls, markets seize or melt and the right cars sip gas.

Colorful verbs can convey passion, outrage and a strong sense of right and wrong. In the Declaration of Independence, our founding fathers chose Biblical verbs to convey the depth of their oppression by the King of England: “He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.”  With verbs like that, who would doubt the justice of their cause? Or consider the Gettysburg address, in which Lincoln lamented that “we cannot dedicate . . . we cannot consecrate . . . we cannot hallow . . . this ground.”

Many of your favorite childhood friends also depended on strong verbs. Remember when the wild things “roared their terrible roars and gnashed their terrible teeth and rolled their terrible eyes?” Of course you remember. You remember so well that I don’t need to remind you that this passage comes from Maurice Sendak’s Where the Wild Things Are. Strong verbs cement themselves in your memory.

And there are descriptive verbs for every phase in your life, including your years practicing law. Legislation may falter in the House or sail through Congress. Plaintiffs malinger. Defendants plead. Witnesses mumble, squirm, and duck questions. Other questions elicit responses. Courts admonish. Companies don’t simply fail to disclose losses. They hide those losses. And those losses then propel companies into dangerous financial positions, where they teeter on the verge of bankruptcy.

Colorful verbs can bring passion to judicial opinions, as well. Consider Justice Stevens’s dissent in Citizens United. There, Stevens lamented that “the majority blazes through our precedents. . . .”  Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 930 (2010) (Stevens dissenting).

Both life and the law happen in color so never settle for black and white verbs.

P.S. My book contains lots of strong verbs!

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Italicize case names. Yes, italicize. Don’t underscore.

Old habits die hard. When I suggest that lawyers italicize case names, they often react in horror. But the modern preference is to italicize case names, rather than underscore, although either is correct. I know. You still don’t believe me. Since my word on this issue may not be enough to slant you (pun intended!) in the proper direction, here’s the reason why.

In the old days (before computers), lawyers underscored case names and introductory signals because typewriters and early word-processing programs could not italicize. So briefs that were professionally printed used italics, but briefs that were typed in-house had to make do with underscoring. Although most style manuals say that case names may be italicized or underscored, it makes sense to drop the obsolete convention of underscoring now that typewriters are being turned into jewelry.

All the authorities agree on this. The style guides still allow underscoring out of deference to anyone who may still be typing on an old typewriter. Contrary to popular perception, The Bluebook does not require underscoring. It gives the option of either underscoring or italicizing (see bluepages at front, B13 on typeface conventions), but it then confuses the issue by using underscoring throughout. (Did you expect anything but confusion from The Bluebook?)

The ultimate guru on all things related to the design of legal documents is Matthew Butterick. (His book, Typography for Lawyers, is groundbreaking. You should buy it.) He insists on italics for case names and also explains that the Bluebook does not require underscoring.  Bryan Garner also endorses italics. And Supreme Court briefs use italics. Here’s an example: Supreme Court Brief using italics.

Italics follow the design principle of keeping the fonts on a page as simple and consistent as possible. Italics are just easier on the eye.

So tilt away!

-Marie

P.S. My book contains many other fascinating tips like this.

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

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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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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Avoid phrases beginning with “it is.”

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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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.

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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.

Choose words based on how they sound.

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 conveniences” that 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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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.