NovemberReport - page 11

November 2013 CBA REPORT
l
11
legal writer
W
W
riting in plain English is dif-
ficult for lawyers. We started in
law school being brainwashed
by legalese. One problem was that we read
cases by old dead judges, who learned by
reading cases written by older, deader
judges. All weren’t Holmes or Cardozo.
Most were atrocious writers.
WilliamHoward Taft (who believed he
was a good writer!) once started a Supreme
Court opinion with a 356-word sentence.
In one 6th Circuit opinion, Judge Taft
wrote a 10-page paragraph. It contained
1,947 words and 66 sentences.
But lawyers—and everyone else—
should write in plain language.
Plain English is simply this: write in
the most readable manner for your audi-
ence to understand. Make it easy on the
reader. That doesn’t sound difficult, but
as lawyers, we have fallen into bad habits.
Foolish habits are often hard to break. At
minimum, you can improve your writing
by making some elementary changes:
Shorter Sentence Length.
Sentence length is the first major
element of readability. Sentences should
average no more than 18 words, and
never go over 35. One exception to the
35-word limit: lists, if done correctly.
Fewer Passive Sentences.
Active voice is another element of
readability. We talk in the active voice.
Sometimes passive is unavoidable, but
usually not. Write
the court reversed the
judgment
, rather than
the judgment was
reversed
.
Fewer Verbs Turned Into Nouns.
Question words ending in
-tion
or
-
ment
. Some simply cover up perfectly
good verbs. How about Smith Company
determined
, rather than
made a determi-
nation
? The plan
improved
the roadway,”
rather than
resulted in an improvement to
the roadway? Or you
moved
for summary
judgment, not
filed a motion
for sum-
mary judgment? Putting nominalizations
back into verbs greatly improves your
writing—saving not only words, but also
awkward constructions.
Shorter Paragraphs
We tend to run on and on. There is no
specific rule, but don’t ever go more than
a half page — the reader has to see when
it’s safe to take a break.
More Headings
Headings are signposts for the reader.
And we should use them for the same
reason we try writing shorter sentences
and shorter paragraphs
to communicate
quickly and clearly to our readers
. Instead
of
Facts
or
Argument,
write
The Fire and
the Aftermath
or
No Miranda
V
iolation
.
Easily Readable Typefaces
Stop using
Times New Roman
. It was
designed for newsprint, where the ink ex-
pands. But our laser printers don’t bleed,
and print TNR too small, especially the
periods and commas. Always use a serif
font for long text. Never use
Courier
unless you are attempting a joke—it’s
the most unreadable typeface. Use
Georgia
,
Palatino
, or
Garamond
. Those
are the best that we all have free on our
WPs. There are many other good fonts
you can buy; but don’t do that without
expert help. Use a san serif font —
Arial
,
Helvetica
, or
Verdana
—for headings,
but not text.
OneWord, Not Three.
The goofy couplets,
null and void
,
fit
and proper
,
will and testament
,
sell and
convey
,
due and payable
, haven’t been nec-
essary for almost a thousand years, but we
forgot to change. Using both gives your op-
ponent, or a court, the chance to contend
that they must mean two different things.
But they mean exactly the same thing—
they were originally English and French
versions of the same word. See
Kohlbrand
v. Ranieri,
823 N.E.2d 76 (2005).
No Lawspeak.
Hereinafter
,
Aforesaid
,
Thereinafter
,
Whereas
, and the like are banned, unless
you are trying to be funny.
These are just a few quick ways to
make your writing better. You can find
a more in-depth discussion of all the
above, plus more, in
The Legal Writer: 40
Rules for the Art of Legal Writing
.
Readability
I always show the readability scores
for the column. Statistics for this column:
11 words per sentence, 3% passive voice,
and grade level 6.8.
Painter served as a judge for exactly 30 years (Ides
March 1982 to Ides March 2012), including the Ohio
Court of Appeals for 14 years, 13 years on the Hamilton
County Municipal Court, and the last three on the
United Nations Appeals Tribunal. He now is Of
Counsel with Manley Burke LPA. He is the author of
more than 400 nationally published decisions, 145 legal
articles, and 6 books, including The Legal Writer: 40
Rules for the Art of Legal Writing, which is available at
or amazon.com.
By Mark P. Painter
Plain Perfection
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